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Reyes v. BAC Home Loans Servicing L.P.

Florida Court of Appeals, Second District

September 6, 2017

ENEIDA REYES, Appellant,
v.
BAC HOME LOANS SERVICING L.P., Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Perry A. Little, Senior Judge.

          David D. Sharpe of The Law Office of Dario Diaz, P.A., Tampa, for Appellant.

          Jessica Conte and Kimberly N. Hopkins of Shapiro, Fishman & Gache, LLP, Tampa, for Appellee.

          ROTHSTEIN-YOUAKIM, Judge.

         Eneida Reyes appeals from a final summary judgment of foreclosure in favor of Plaintiff, BAC Home Loans Servicing, L.P. Specifically, she argues that the trial court erred in denying her motion to amend her answer and affirmative defenses and subsequently granting BAC's motion for summary judgment. We agree with Reyes and reverse.

         FACTS

         Reyes bought her Tampa home in 1983. In 2007, at the age of seventy-four, she refinanced the mortgage on her home for approximately $100, 000. Before the refinance, her monthly principal and interest payment (P&I) was about $250. After the refinance, her monthly P&I was about $885.

         BAC filed its foreclosure complaint on January 21, 2010, alleging that Reyes had last paid her mortgage in September 2009. After BAC moved for summary judgment on September 1, 2011, Reyes retained counsel, who successfully moved to vacate a previously entered default and filed an answer that included eleven affirmative defenses. In December 2012, following a hearing, the trial court struck eight of the affirmative defenses without prejudice and gave Reyes thirty days to file an amended answer and affirmative defenses. Reyes did not file an amended answer and affirmative defenses within those thirty days. Instead, the parties engaged in discovery and a failed attempt at mediation.

         Finally, a hearing on BAC's still-pending motion for summary judgment was scheduled for May 19, 2015. Shortly before the hearing, Reyes filed an affidavit in opposition to the motion for summary judgment, a transcript of the recent deposition of BAC's corporate representative, a motion to amend her answer and affirmative defenses, and a memorandum of law on her affirmative defense of predatory lending. In the motion to amend, Reyes's counsel explained that he had "just recently uncovered the fact that the affirmative defenses were not re-pleaded." He also asserted that the parties had been engaged in ongoing settlement efforts, that Reyes had made reasonable attempts to resolve the case but BAC had been uncooperative, and that the deposition testimony of BAC's corporate representative supported Reyes's affirmative defense of predatory lending. At the May 19, 2015, hearing, the trial court denied Reyes's motion to amend, granted BAC's motion for summary judgment, and entered a Uniform Final Judgment of Foreclosure.

         Reyes timely moved for rehearing.[1] At the July 6, 2015, hearing on that motion, Reyes's counsel reiterated the trial court's apparent rationale for denying the motion to amend: "[T]he court was not satisfied with the length of time that had elapsed since . . . [the] order striking most of the Affirmative Defenses . . . ." Counsel explained that he had drafted the amended pleading in 2011 and Reyes had verified it at that time, but, due to his own oversight, it had never been filed. He characterized his oversight as "excusable neglect" and argued that BAC would suffer no prejudice if the court were to grant the motion to amend because the affirmative defenses were essentially the same defenses that Reyes had raised previously, albeit more fully developed. Unswayed, the court stated: "I'm going to stand by my original ruling. I find no excusable neglect for late filing of the Amended Affirmative Defenses until a week before [the hearing on the motion for summary judgment]." This appeal followed.

         ANALYSIS

         As noted above, there is no transcript of the May 19, 2015, hearing on Reyes's motion to amend and BAC's motion for summary judgment. Although BAC urges this court to affirm in light of the lack of a transcript, we are not constrained to do so if there is error apparent on the face of the record. See Celebrity Cruises, Inc. v. Fernandes, 149 So.3d 744, 749 n.3 (Fla. 3d DCA 2014) (explaining that, although appellant's failure to provide transcript generally dictates affirmance, appellate court may review lower court's judgment for error apparent on its face notwithstanding absence of transcript). Here, the record comprises, among other things, BAC's complaint, Reyes's original answer and affirmative defenses, Reyes's motion to amend and her proposed amended answer and affirmative defenses, BAC's response to Reyes's motion for rehearing, and a transcript of the July 6, 2015, hearing on Reyes's motion for rehearing, which included a "recap" of the May 19 hearing on the motion to amend. Under these circumstances, the lack of a transcript of the May 19 hearing does not impede our consideration of Reyes's challenge to the trial court's denial of her motion to amend and ensuing grant of BAC's motion for summary judgment. See Houk v. PennyMac Corp., 210 So.3d 726, 730-31 (Fla. 2d DCA 2017) (holding that absence of transcript was not critical to determination of appeal where record was sufficient to determine whether trial court had properly entered summary judgment).

         The trial court denied Reyes's motion to amend because Reyes filed it two weeks before the scheduled hearing on BAC's motion for summary judgment and because the court found that counsel had failed to establish "excusable neglect" for the delay. But the bare timing of a motion to amend and whether counsel's failure to seek amendment sooner constituted "neglect, " excusable or otherwise, are, at most, ancillary to the primary considerations of prejudice to the opposing party, abuse of the privilege, and futility of the proposed amended pleading. Laurencio v. Deutsche Bank Nat'l Tr. Co., 65 So.3d 1190, 1193 (Fla. 2d DCA 2011) ("A trial court's refusal to permit an amendment of a pleading is an abuse of discretion unless it is clear that: (1) the amendment would prejudice the opposing party, (2) the privilege to amend has been abused, or (3) the amendment would be futile." (quoting S. Developers & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp.,56 So.3d 56, 62-63 (Fla. 2d DCA 2011))); see also RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So.3d 915, 917 (Fla. 3d DCA 2016) ("If such dangers cannot be clearly established, the trial court abuses its discretion by denying the party's motion for leave to amend the pleading." (citing Cobbum v. Citimortgage, Inc.,158 So.3d 755, 756 (Fla. 2d DCA 2015))). Indeed, this court has repeatedly noted that " '[p]ublic policy favors the liberal amendment of pleadings so that cases may be decided on their merits, ' " S. Developers, 56 So.3d at 62 ...


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