Supreme Court of Puerto Rico Decision: The filing of a motion for an extension of time constitutes an appearance for purposes of the right to receive notifications from the court and the other parties.
In Banco Popular de Puerto Rico v. Vilma Andino Solís, 2015 T.S.P.R. 3, the Supreme Court of Puerto Rico held that the filing of a motion for extension of time by a party against whom the court subsequently enters default constitutes an appearance for purposes of Rule 65.3(c) of the Rules of Civil Procedure, 32 L.P.R.A. Ap. R. 65.3 (c). Therefore, the Clerk of Court must notify the default judgment to the last address on record of such appearing party instead of notifying the judgment by publication.
Banco Popular de Puerto Rico (“BPPR”) filed a complaint for collection of monies and execution of mortgage against Vilma Andino Solís (“defendant”). Defendant filed a pro se motion for extension of time to answer the complaint. The Court granted defendant’s request and notified the order to her address of record. Nevertheless, defendant did not answer to the complaint. BPPR filed a motion for entry of default and default judgment. The Court issued the requested order and entered default judgment against defendant. The Clerk of the Court notified the order entering default to defendant but not the default judgment. Instead the Court issued a notification to publish the judgment. After several proceedings, the judicial sale was held and the property was foreclosed.Defendant filed a motion to void the judicial sale claiming that although the order granting the extension of time and the order for entry of default were notified to her address, the failure to also notify the default judgment was a violation of her due process and Rule 65.3(c) of Civil Procedure.
Rule 65.3 (c) of Civil Procedure exempts the court and the parties from notifying motions and orders to another party when: (1) the party was served by publication; (2) did not appear before the court; (3) or was an unknown defendant. When a party appears is not an unknown defendant, and all motions and orders must be notified to their address of record, even if the court has entered default against such party. The Supreme Court held: (1) that a motion for extension of time, a motion to dismiss, and a motion for transfer constitutes an appearance for purposes of Rule 65.3, therefore the court must notify all orders, resolutions and judgments to all the parties who filed an appearance in the action; (2) the court’s failure to serve proper notice is a due process violation; and (3) BPPR could not cure the Court’s error by notifying the judgment to defendant by regular mail because the obligation falls on the Clerk of the Court. Since the Clerk of the Court did not comply with Rule65.3, the Supreme Court voided the judicial sale.
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