Laurencio v. Deutsche Bank National Trust Co.
65 So. 3d 1190
| Fla. Dist. Ct. App. | 2011Background
- Deutsche Bank accelerated all sums due under Laurencio's Note and Mortgage and informed Laurencio of filing a foreclosure; complaint filed two days later with an attached acceleration letter.
- Paragraph 22 of the mortgage required presuit notice and 30-day cure before acceleration and foreclosure proceedings.
- Laurencio filed a pro se answer in 2008; no affirmative defenses were asserted until later.
- Deutsche Bank moved for summary judgment in 2009; Laurencio, with new counsel, opposed based on lack of notice under paragraph 22.
- Laurencio sought leave to amend in 2010 to add defenses alleging improper acceleration and failure to comply with paragraph 22; the court denied the motion.
- The trial court granted summary judgment for Deutsche Bank, which this court reversed and remanded for allowing amendment and trial on genuine issues of fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether presuit notice/conditions precedent were met | Laurencio | Laurencio | Issues of compliance create genuine fact questions; summary judgment reversed |
| Whether leave to amend should have been granted | Laurencio | Laurencio | Trial court abused discretion; amendment should have been allowed |
Key Cases Cited
- Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011) (reverses summary judgment when conditions precedent not shown)
- Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272 (Fla. 2d DCA 2006) (summary judgment requires no genuine issues of material fact; inferences in favor of nonmovant)
- Moore v. Morris, 475 So.2d 666 (Fla. 1985) (summary judgment burden and standard of review)
- S. Developers & Earth-moving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So.3d 56 (Fla. 2d DCA 2011) (liberal amendment policy and factors for denying amendments)
- Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So.2d 1132 (Fla. 5th DCA 1998) (amendment should be allowed when sought before summary judgment unless prejudice or futility)
- Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-op. Bank, 592 So.2d 302 (Fla. 1st DCA 1991) (liberal policy toward amendment of pleadings)
- Wayne Creasy Agency, Inc. v. Maillard, 604 So.2d 1235 (Fla. 3d DCA 1992) (amendment standards for pleadings and defenses)