Reyes v. Bac Home Loans Servicing L.P. , 2017 Fla. App. LEXIS 12791 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ENEIDA REYES, )
)
Appellant, )
)
v. ) Case No. 2D15-3495
)
BAC HOME LOANS SERVICING L.P., )
)
Appellee. )
)
Opinion filed September 6, 2017.
Appeal from the Circuit Court for
Hillsborough County; Perry A. Little,
Senior Judge.
David D. Sharpe of The Law Office of
Dario Diaz, P.A., Tampa, for
Appellant.
Jessica Conte and Kimberly N.
Hopkins of Shapiro, Fishman &
Gache, LLP, Tampa, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
Eneida Reyes appeals from a final summary judgment of foreclosure in
favor of Plaintiff, BAC Home Loans Servicing, L.P. Specifically, she argues that the trial
court erred in denying her motion to amend her answer and affirmative defenses and
subsequently granting BAC's motion for summary judgment. We agree with Reyes and
reverse.
FACTS
Reyes bought her Tampa home in 1983. In 2007, at the age of seventy-
four, she refinanced the mortgage on her home for approximately $100,000. Before the
refinance, her monthly principal and interest payment (P&I) was about $250. After the
refinance, her monthly P&I was about $885.
BAC filed its foreclosure complaint on January 21, 2010, alleging that
Reyes had last paid her mortgage in September 2009. After BAC moved for summary
judgment on September 1, 2011, Reyes retained counsel, who successfully moved to
vacate a previously entered default and filed an answer that included eleven affirmative
defenses. In December 2012, following a hearing, the trial court struck eight of the
affirmative defenses without prejudice and gave Reyes thirty days to file an amended
answer and affirmative defenses. Reyes did not file an amended answer and
affirmative defenses within those thirty days. Instead, the parties engaged in discovery
and a failed attempt at mediation.
Finally, a hearing on BAC's still-pending motion for summary judgment
was scheduled for May 19, 2015. Shortly before the hearing, Reyes filed an affidavit in
opposition to the motion for summary judgment, a transcript of the recent deposition of
BAC's corporate representative, a motion to amend her answer and affirmative
defenses, and a memorandum of law on her affirmative defense of predatory lending.
In the motion to amend, Reyes's counsel explained that he had "just recently uncovered
the fact that the affirmative defenses were not re-pleaded." He also asserted that the
parties had been engaged in ongoing settlement efforts, that Reyes had made
reasonable attempts to resolve the case but BAC had been uncooperative, and that the
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deposition testimony of BAC's corporate representative supported Reyes's affirmative
defense of predatory lending. At the May 19, 2015, hearing, the trial court denied
Reyes's motion to amend, granted BAC's motion for summary judgment, and entered a
Uniform Final Judgment of Foreclosure.
Reyes timely moved for rehearing. 1 At the July 6, 2015, hearing on that
motion, Reyes's counsel reiterated the trial court's apparent rationale for denying the
motion to amend: "[T]he court was not satisfied with the length of time that had elapsed
since . . . [the] order striking most of the Affirmative Defenses . . . ." Counsel explained
that he had drafted the amended pleading in 2011 and Reyes had verified it at that time,
but, due to his own oversight, it had never been filed. He characterized his oversight as
"excusable neglect" and argued that BAC would suffer no prejudice if the court were to
grant the motion to amend because the affirmative defenses were essentially the same
defenses that Reyes had raised previously, albeit more fully developed. Unswayed, the
court stated: "I'm going to stand by my original ruling. I find no excusable neglect for
late filing of the Amended Affirmative Defenses until a week before [the hearing on the
motion for summary judgment]." This appeal followed.
ANALYSIS
As noted above, there is no transcript of the May 19, 2015, hearing on
Reyes's motion to amend and BAC's motion for summary judgment. Although BAC
urges this court to affirm in light of the lack of a transcript, we are not constrained to do
1Our record lacks, among other things, a transcript of the May 19, 2015,
hearing, an order denying Reyes's motion to amend, an order granting BAC's motion for
summary judgment (although the first paragraph of the final judgment of foreclosure
states, "[BAC's] Motion for Summary Judgment is GRANTED"), and Reyes's motion for
rehearing.
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so if there is error apparent on the face of the record. See Celebrity Cruises, Inc. v.
Fernandes, 149 So. 3d 744, 749 n.3 (Fla. 3d DCA 2014) (explaining that, although
appellant's failure to provide transcript generally dictates affirmance, appellate court
may review lower court's judgment for error apparent on its face notwithstanding
absence of transcript). Here, the record comprises, among other things, BAC's
complaint, Reyes's original answer and affirmative defenses, Reyes's motion to amend
and her proposed amended answer and affirmative defenses, BAC's response to
Reyes's motion for rehearing, and a transcript of the July 6, 2015, hearing on Reyes's
motion for rehearing, which included a "recap" of the May 19 hearing on the motion to
amend. Under these circumstances, the lack of a transcript of the May 19 hearing does
not impede our consideration of Reyes's challenge to the trial court's denial of her
motion to amend and ensuing grant of BAC's motion for summary judgment. See Houk
v. PennyMac Corp., 210 So. 3d 726, 730-31 (Fla. 2d DCA 2017) (holding that absence
of transcript was not critical to determination of appeal where record was sufficient to
determine whether trial court had properly entered summary judgment).
The trial court denied Reyes's motion to amend because Reyes filed it two
weeks before the scheduled hearing on BAC's motion for summary judgment and
because the court found that counsel had failed to establish "excusable neglect" for the
delay. But the bare timing of a motion to amend and whether counsel's failure to seek
amendment sooner constituted "neglect," excusable or otherwise, are, at most, ancillary
to the primary considerations of prejudice to the opposing party, abuse of the privilege,
and futility of the proposed amended pleading. Laurencio v. Deutsche Bank Nat'l Tr.
Co., 65 So. 3d 1190, 1193 (Fla. 2d DCA 2011) ("A trial court’s refusal to permit an
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amendment of a pleading is an abuse of discretion unless it is clear that: (1) the
amendment would prejudice the opposing party, (2) the privilege to amend has been
abused, or (3) the amendment would be futile." (quoting S. Developers & Earthmoving,
Inc. v. Caterpillar Fin. Servs. Corp., 56 So. 3d 56, 62-63 (Fla. 2d DCA 2011))); see also
RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So. 3d 915, 917 (Fla. 3d DCA 2016) ("If
such dangers cannot be clearly established, the trial court abuses its discretion by
denying the party’s motion for leave to amend the pleading." (citing Cobbum v.
Citimortgage, Inc., 158 So. 3d 755, 756 (Fla. 2d DCA 2015))). Indeed, this court has
repeatedly noted that " '[p]ublic policy favors the liberal amendment of pleadings so that
cases may be decided on their merits,' " S. Developers, 56 So. 3d at 62 (quoting EAC
USA, Inc. v. Kawa, 805 So. 2d 1, 5 (Fla. 2d DCA 2001)), and that "[a]ll doubts must be
resolved in favor of allowing the amendment of pleadings," Id. (citing EAC USA, Inc.,
805 So. 2d at 5); see also Fla. R. Civ. P. 1.190(a) ("Leave of court [to amend a
pleading] shall be given freely when justice so requires.").
The record does not establish any of the dangers that would support the
denial of Reyes's motion to amend. First, as this was her first request to do so, it did not
constitute an abuse of the privilege. See, e.g., Life Gen. Sec. Ins. Co. v. Horal, 667 So.
2d 967, 969 (Fla. 4th DCA 1996) ("Since Life General had not sought to amend its
pleadings before the instance we now review, it cannot be said that the appellant has
abused the privilege."); cf. Alvarez v. DeAguirre, 395 So. 2d 213, 217 (Fla. 3d DCA
1981) ("While we stress that it is not the number of amendments which determines the
abuse, it has been held that '[g]enerally three ineffective attempts to state the same
cause of action or defense are enough,' . . . and the 'liberality in permitting amendments
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decreases as the action progresses and as the number of amended pleading[s]
increases.' " (quoting Henry P. Trawick, Jr., Trawick's Florida Practice and Procedure §§
14-2 & 14-3 (1980 ed.))) (first alteration in original).
Moreover, BAC failed to establish that it would have been prejudiced by
the amendment. Although it questioned whether Reyes's neglect was excusable and
complained generally about the "last minute" timing of Reyes's motion and its frustrated
expectations concerning how the summary judgment proceeding would unfold, the crux
of its objections was that the motion simply was "untimely," which the courts of appeal
have rejected as sufficient basis for denying leave to amend. See, e.g., RV-7 Prop.,
187 So. 3d at 917 (no prejudice where motion to amend was filed two days before
summary judgment hearing); Crown v. Chase Home Fin., 41 So. 3d 978, 980 (Fla. 5th
DCA 2010) (no prejudice where proposed amended answer was filed after filing of
motion for summary judgment even though it raised several affirmative defenses not
addressed in motion for summary judgment); Carib Ocean Shipping, Inc. v. Armas, 854
So. 2d 234, 235-37 (Fla. 3d DCA 2003) (no prejudice where proposed amended answer
raising new affirmative defense was filed "shortly before trial" and despite defendant's
concession that the failure to include defense in previous pleading "was pure
negligence"); Leavitt v. Garson, 528 So. 2d 108, 111 (Fla. 4th DCA 1988) (no prejudice
where motion to amend was made before hearing on motion for summary judgment and
before case was set for trial).
Finally, the record does not establish that amendment would have been
futile. "Any doubt with respect to futility should be resolved in favor of allowing the
amendment, especially when leave to amend is sought at or before the summary
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judgment hearing." RV-7 Prop., 187 So. 3d at 917. We decline to conclude that
amendment would have been futile when the trial court struck Reyes's original
affirmative defenses without prejudice and specifically provided how she could re-plead
one of those defenses. Reyes repleaded her affirmative defenses with additional facts
and specificity, and while we do not say whether she should ultimately prevail on any of
them, neither the record nor BAC's arguments below or on appeal refute their potential
viability as a matter of law.
Because the trial court erred in denying Reyes's motion to amend, it
necessarily erred in granting BAC's motion for summary judgment. In concluding that
reversal is warranted on procedural grounds, however, we decline to address Reyes's
substantive challenges to the court's rejection of her affirmative defenses regarding
BAC's standing, BAC's asserted failure to comply with conditions precedent, and BAC's
asserted failure to comply with 12 U.S.C. § 1701x(c)(5).
CONCLUSION
The trial court abused its discretion in denying Reyes's motion to amend
her answer and affirmative defenses and, consequently, erred in granting BAC's motion
for summary judgment. Accordingly, we reverse the final judgment of foreclosure and
remand for vacatur of the order denying Reyes's motion to amend and for further
proceedings consistent with this opinion.
Reversed and remanded with directions.
SILBERMAN and KELLY, JJ., Concur.
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