158 So. 3d 755
Fla. Dist. Ct. App.2015Background
- Cobbum and Downey were defendants in a residential mortgage foreclosure by CitiMortgage (successor to ABN AMRO).
- They initially filed an answer (through counsel) generally admitting allegations that conditions precedent to suit had been met, while reserving the right to assert defenses discovered later.
- Cobbum later filed an affidavit stating CitiMortgage did not provide the 30-day acceleration notice required by paragraph 22 of the mortgage and that such notice was a condition precedent to foreclosure.
- At the summary judgment hearing, defendants’ counsel sought leave ore tenus to amend the answer to assert the affirmative defense of failure to comply with the 30-day notice after the court found the affidavit insufficient.
- The trial court denied leave to amend without findings and entered final summary judgment for CitiMortgage.
- The Second District reversed, concluding the trial court abused its discretion in denying leave to amend because amendment was not prejudicial, abusive, or futile.
Issues
| Issue | Plaintiff's Argument (Cobbum/Downey) | Defendant's Argument (CitiMortgage) | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying leave to amend answer to add affirmative defense that lender failed to provide 30-day acceleration notice | Amendment should be allowed because affidavit raised genuine issue that lender did not give required notice and leave to amend is proper at/ before summary judgment hearing | Denial proper because original answer admitted conditions precedent were met and no affirmative defense was pleaded; affidavit insufficient to create issue | Reversed: abuse of discretion — leave to amend should have been granted; no showing of prejudice, abuse, or futility |
Key Cases Cited
- Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So. 3d 1190 (Fla. 2d DCA 2011) (sets standard for when denial of leave to amend is abuse of discretion; liberal leave required before summary judgment)
- S. Developers & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So. 3d 56 (Fla. 2d DCA 2011) (factors for denying amendment: prejudice, abuse, futility)
- Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d 1132 (Fla. 5th DCA 1998) (courts especially liberal in allowing amendments at or before summary judgment)
- Hutson v. Plantation Open MRI, LLC, 66 So. 3d 1042 (Fla. 4th DCA 2011) (same principle regarding amendments before summary judgment)
- Sun Valley Homeowners, Inc. v. Am. Land Lease, Inc., 927 So. 2d 259 (Fla. 2d DCA 2006) (opposing party must show prejudice to justify denial)
- Ramos v. Sabadell United Bank, N.A., 137 So. 3d 557 (Fla. 4th DCA 2014) (failure to comply with mortgage’s notice requirement raises material factual dispute)
- Isaac v. Deutsche Bank Nat'l Trust Co., 74 So. 3d 495 (Fla. 4th DCA 2011) (denial of amendment affirmed where amendment would be futile)