Bank of America, National Ass'n v. Asbury
2015 Fla. App. LEXIS 7959
| Fla. Dist. Ct. App. | 2015Background
- Brooke Asbury owned residential property secured by a promissory note and mortgage; she defaulted and Bank of America accelerated the note and filed a foreclosure complaint on July 29, 2009.
- Bank of America’s complaint alleged generally that "all conditions precedent" to foreclosure had been performed; Asbury answered with general denials and answered "without knowledge" as to that allegation.
- At nonjury trial, Bank of America offered testimony and a proffered default letter to prove it mailed the required pre-foreclosure default notice (Paragraph 22 of the mortgage); the trial court found the bank did not prove mailing and entered final judgment for Asbury.
- The trial court ruled the bank "failed to introduce any evidence" that conditions precedent were met and that the default letter was mailed; Bank of America appealed.
- The appellate majority held the dispositive issue was pleading: Asbury never specifically pleaded noncompliance with the condition precedent (mailing), so she waived that defense and the trial court erred in entering judgment on that basis.
Issues
| Issue | Plaintiff's Argument (Bank of America) | Defendant's Argument (Asbury) | Held |
|---|---|---|---|
| Whether defendant waived a challenge to plaintiff’s compliance with conditions precedent by failing to plead it specifically | Bank argued Asbury did not specifically plead noncompliance so she waived that defense and could not prevail at trial on that ground | Asbury argued she generally denied mailing ("without knowledge") and thus was not required to plead the specific condition because mailing was the only condition precedent | Held: Defendant waived the defense by not pleading a specific denial of the condition precedent; trial court erred in entering judgment for Asbury on that basis |
| Whether the trial court properly refused to admit or credit bank’s proof of mailing | Bank argued trial evidence (witness testimony and business records/bar code) established mailing; objected on appeal to exclusion/weight | Asbury challenged witness competence and attacked proof at trial; trial court judged evidence insufficient and excluded parts as hearsay | Held: Appellate court did not decide admissibility merits because waiver of pleading was dispositive; reversed and remanded for further proceedings |
| Whether an exception exists to Fla. R. Civ. P. 1.120(c) when only a single condition precedent exists | Bank argued rule applies normally and defendant must specifically deny; no exception | Asbury argued no need to plead specifically when only one condition precedent (mailing) exists and she generally denied it | Held: No exception — rule 1.120(c) requires specific denial regardless of single or multiple conditions |
| Whether issue was tried by consent or otherwise preserved despite pleading defects | Bank argued pleading defect waived the issue | Asbury could have argued the issue was tried by consent given trial evidence, but did not make that argument below | Held: Appellate court noted the potential for a tried-by-consent argument but Asbury did not raise it; decision rests on pleading waiver |
Key Cases Cited
- Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla. 1963) (pleadings define and narrow issues for trial)
- Cooke v. Ins. Co. of N. Am., 652 So.2d 1154 (Fla. 2d DCA 1995) (defendant must specifically plead denial of conditions precedent or waives right to demand proof)
- VonDrasek v. City of St. Petersburg, 777 So.2d 989 (Fla. 2d DCA 2000) (failure to specifically plead condition precedent defense waives it)
- Griffin v. Am. Gen. Life & Acc. Ins. Co., 752 So.2d 621 (Fla. 2d DCA 1999) (satisfaction of condition precedent must be specifically denied or is waived)
- Barco v. Sch. Bd. of Pinellas Cnty., 975 So.2d 1116 (Fla. 2008) (rules of civil procedure are construed according to statutory-construction principles)
- Aills v. Boemi, 29 So.3d 1105 (Fla. 2010) (appellate preservation requires raising specific legal grounds in trial court)