FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Perry A.
Little, Senior Judge.
D. Sharpe of The Law Office of Dario Diaz, P.A., Tampa, for
Jessica Conte and Kimberly N. Hopkins of Shapiro, Fishman
& Gache, LLP, Tampa, for Appellee.
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.
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.
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.
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.
timely moved for rehearing. 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.
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).
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 ...