Wells Fargo Bank, N.A. v. Chatham
114 So. 3d 1062
Fla. Dist. Ct. App.2013Background
- Wells Fargo filed a foreclosure complaint on February 25, 2010 seeking to enforce a mortgage and note with payments due since June 1, 2009; the borrower did not respond and a default was entered September 26, 2011 after 17 months with little record activity.
- The borrower filed a motion to set aside the default alleging excusable neglect and a meritorious defense that the plaintiff lacked standing as holder in due course and that the complaint was not verified as required by Florida Rule of Civil Procedure 1.110(b).
- The trial court denied the motion to set aside after a hearing (order dated February 8, 2012; filed February 13, 2012).
- On January 26, 2012, the court issued a form order advising cure of the verification defect within 15 days; the cure deadline expired February 10, 2012.
- Wells Fargo served an amended complaint with verification on February 14, 2012 (filed February 20, 2012); the court signed a dismissal order on February 16, 2012 (filed February 22, 2012) for failure to timely cure, described as without prejudice but requiring a new filing if a new action is filed.
- Wells Fargo timely sought rehearing on February 27, 2012; the trial court denied rehearing on May 2, 2012; Wells Fargo appealed the dismissal order to the appellate court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the amended complaint and court’s cure order | Wells Fargo argues the four-day tardiness was excusable and not prejudicial. | Appellee argues dismissal was proper for failure to timely cure under the court’s order. | Abuse of discretion; reversal and remand for merits. |
| Prejudice to Appellee from late amendment | Wells Fargo contends Appellee was not prejudiced by the tardiness. | Appellee contends prejudice from delays and procedural disruption. | No prejudice shown; remand permissible. |
| Remedy upon error | Reinstatement of amended complaint allows adjudication on the merits. | Dismissal preserves a new action as option but is unnecessarily harsh here. | Reverse dismissal and remand for proceedings on the amended complaint. |
Key Cases Cited
- D’Best Laundromat, Inc. v. Janis, 508 So.2d 1325 (Fla. 3d DCA 1987) (four days late amendment improper dismissal in similar context)
- Kerry’s Bromeliad Nursery, Inc. v. Reiling, 561 So.2d 1305 (Fla. 3d DCA 1990) (late amendment—not always fatal; dismissal improper under similar timing)
- Araujo-Sanchez v. Amoon, 513 So.2d 1307 (Fla. 3d DCA 1987) (late amendment context; non-prejudicial lateness allowed)
- Kozel v. Ostendorf, 629 So.2d 817 (Fla.1994) (efficiency and deadlines; discretions to enforce orders)
- Eagle’s Crest, LLC v. Republic Bank, 42 So.3d 848 (Fla. 2d DCA 2010) (discretionary review of trial court actions; respect for deadlines)