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Glen Garron, LLC v. Buchwald

Florida Court of Appeals, Fifth District

February 3, 2017

GLEN GARRON, LLC, Appellant,
v.
MARLA BUCHWALD, ETC., ET AL., Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Orange County, Charles M. Holcomb, Senior Judge.

          Thomas Wade Young and Joseph B. Towne, Lender Legal Services, LLC, Orlando, for Appellant.

          Amanda L. Lundergan and Thomas Erskine Ice, of Ice Appellate, Royal Palm Beach, for Appellee, Marla Buchwald, and Steven J. Brotman, of Ice Legal, P.A., Royal Palm Beach, for Appellee, Gracie Marla Buchwald.

          No Appearance for other Appellee.

          BERGER, J.

         Glen Garron, LLC, appeals both the trial court's order dismissing its foreclosure complaint against Marla Buchwald and the order denying its motions for rehearing and leave to file an amended complaint. Glen Garron raises two issues on appeal. First, it argues that the trial court erred in dismissing the foreclosure action for failure to attach a copy of the note to the complaint. Glen Garron contends the material provisions of the note were included in the mortgage and riders to the mortgage that were attached to the complaint and that the filing of the original note after the complaint was filed was sufficient to cure any violation of Florida Rule of Civil Procedure 1.130. Second, Glen Garron asserts that the trial court abused its discretion when it denied the motion for leave to amend the complaint. We agree on both issues and reverse.

         On September 16, 2009, BankUnited, N.A. (hereinafter BankUnited), formerly BankUnited, FSB, [1] filed a two-count foreclosure complaint against Buchwald. Count I was an action on the note, and Count II was an action on the mortgage for foreclosure. BankUnited alleged that it held the note and the mortgage and that all conditions precedent to acceleration and foreclosure had been performed or occurred. Copies of the mortgage, the property description, and the adjustable rate rider were attached to the foreclosure complaint. A copy of the note was not attached. However, the original note and mortgage were filed with the trial court at a later time. Attached to the original note was an allonge containing an undated blank indorsement from BankUnited, FSB.[2]

         In lieu of an answer, Buchwald filed a pro se motion to dismiss, arguing BankUnited's failure to attach a copy of the note to the foreclosure complaint required dismissal pursuant to Florida Rule of Civil Procedure 1.130(a).[3] The motion was denied in August 2010, and the case eventually proceeded to trial on May 14, 2015.[4]

         When the trial began, Buchwald moved ore tenus for judgment on the pleadings arguing, once again, that dismissal was required because BankUnited failed to attach a copy of the note to the foreclosure complaint. See Fla. R. Civ. P. 1.140(c). The trial court reserved ruling on the motion, and the trial resumed. During a recess, however, the trial court granted Buchwald's motion and dismissed the complaint without prejudice. The trial court concluded:

It is the law in Florida that the mortgage follows the note. Filing an original note in the Court file, even with notice given to Defendant and the Court, cannot cure the defect in the pleadings when it is the original complaint. The Plaintiff was made aware of the defect as far back as October 2009 and did nothing to correct the defect. A denial of the Motion to Dismiss, an interlocutory Order, cannot excuse the failure to attach the note to the Complaint as the Rule and case law requires the Note to be attached. The Order denying the Motion does not state why the Motion to Dismiss was denied but a reason could have been that Defendant, acting pro se, failed to attend the hearing to argue it. However, whatever the reason, it appears to the Court that the Complaint never stated a cause of action and filing the note in the Court file does not cure the defect and "breathe life into the complaint."

         Both parties moved for rehearing. Buchwald argued that the trial court should have dismissed the entire case and not just the foreclosure complaint. Glen Garron urged the trial court to vacate its order dismissing the foreclosure complaint or, alternatively, to permit it to file an amended complaint. The trial court denied Glen Garron's motion for rehearing and later amended the order of dismissal to state the case was dismissed without prejudice and without leave to amend the complaint. This appeal followed.

         Glen Garron argues the trial court erred by applying "a rigid, legalistic interpretation of Rule 1.130(a) wholly at odds with controlling precedent, the language and purpose of the rule, and the command that the Florida Rules of Civil Procedure 'shall be construed to secure the just, speedy and inexpensive determination of every action.'" It maintains that the incorporation of the material portions of the note into other documents, such as the adjustable rate rider to the mortgage, which were attached to the foreclosure complaint is sufficient to satisfy the requirement of rule 1.130. We agree.

         "The purpose of a motion for judgment on the pleadings is to test the legal sufficiency of a cause of action or defense where there is no dispute as to the facts." U.S. Fire Ins. Co. v. ADT Sec. Servs., Inc., 134 So.3d 477, 479 (Fla. 2d DCA 2013) (quoting Barentine v. Clements, 328 So.2d 878, 879 (Fla. 2d DCA 1976)). We review the issue of whether a complaint states a cause of action de novo. Nationstar Mortg., LLC v. Zorie, 146 ...


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