Paul Schroth and Josephine Schroth v. Cape Coral Bank

Appellants, Paul Schroth and Josephine Schroth, were defendants in a suit brought by The Cape Coral Bank to foreclose a mortgage on property owned by them. They made no appearance in the suit, and a final judgment was entered in favor of the Bank in which the trial court retained juris diction to enter additional orders as necessary. The foreclosure sale resulted in proceeds exceeding the Bank's entitlement. Subsequently, the Schroths filed a motion seeking to establish a priority interest in the surplus proceeds on the basis that they held a security interest in the property superior to the interests of all claimants other than the Bank. The trial court entered an order finding that while the Schroths did have priority over another defendant who had filed an answer in the foreclosure suit that, nevertheless, they had waived their priority by failing to answer. We think the court erred in this ruling.