FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Charles M. Holcomb,
Wade Young and Joseph B. Towne, Lender Legal Services, LLC,
Orlando, for Appellant.
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.
Appearance for other Appellee.
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.
September 16, 2009, BankUnited, N.A. (hereinafter
BankUnited), formerly BankUnited, FSB,  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.
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). The motion was
denied in August 2010, and the case eventually proceeded to
trial on May 14, 2015.
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."
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.
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.
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 ...