Cobbum v. CitiMortgage, Inc.
| Decision Date | 27 February 2015 |
| Docket Number | No. 2D13–5615.,2D13–5615. |
| Citation | 158 So.3d 755 |
| Parties | Christy A. COBBUM and Patrick Downey, Appellants, v. CITIMORTGAGE, INC., successor by merger to ABN AMRO Mortgage Group, Inc.; Gateway Greens Community Association, Inc.; The Villas at Gateway Greens Homeowners Association Inc.; Fred Feik; and Christine Feik, Appellees. |
| Court | Florida District Court of Appeals |
Michael E. Chionopoulos of Absolute Law PA, Fort Myers, for Appellants.
Ali I. Gilson, William S. Isenberg, and Allyson L. Sartoian of Phelan Hallinan, PLC, Fort Lauderdale, for Appellee CitiMortgage, Inc., successor by merger to ABN AMRO Mortgage Group, Inc.
No appearance for remaining Appellees.
Christy Cobbum and Patrick Downey challenge the final summary judgment of foreclosure entered in favor of CitiMortgage, Inc., successor by merger to ABN AMRO Mortgage Group, Inc. Ms. Cobbum and Mr. Downey raise two issues on appeal. Because our reversal on the first issue raised moots the second issue, we address only Ms. Cobbum and Mr. Downey's argument that the trial court abused its discretion in denying their ore tenus motion to amend the answer and affirmative defenses.
Ms. Cobbum and Mr. Downey filed an answer to CitiMortgage's complaint for foreclosure wherein they generally admitted to all paragraphs relating to CitiMortgage's compliance with conditions precedent to filing suit. The answer also specifically reserved the right to include additional defenses that could not be articulated at that time or that were discovered during the course of litigation. Ms. Cobbum and Mr. Downey were represented by counsel.
After CitiMortgage filed its amended motion for summary judgment, Ms. Cobbum and Mr. Downey filed an affidavit averring that CitiMortgage failed to provide them with the thirty-day acceleration notice to the borrower that was required by paragraph 22 of the mortgage. In the affidavit, Ms. Cobbum averred that filing the thirty-day acceleration notice was a condition precedent to the institution of the mortgage foreclosure action and that by failing to serve such notice CitiMortgage failed to comply with a condition precedent to the filing of the foreclosure, with the result that the court should deny CitiMortgage's motion for summary judgment.
At the hearing on the motion for summary judgment, CitiMortgage contended that the affidavit was insufficient to create a material issue because Ms. Cobbum and Mr. Downey had admitted in their answer that all conditions precedent had been met and no affirmative defenses had been pleaded. Counsel for Ms. Cobbum and Mr. Downey explained that when she prepared the answer she did not know whether Ms. Cobbum and Mr. Downey had received the notice and that she had prepared the answer without raising that affirmative defense. Counsel indicated she believed the affidavit would be sufficient to raise the issue at the hearing. When the court found that the affidavit was insufficient, counsel orally moved for leave to amend the answer to assert the affirmative defense of failure to comply with the thirty-day notice as a condition precedent. The court denied the motion without making findings. The court did, however, note that the defense was not pleaded and that Ms. Cobbum's affidavit was filed three months before the summary judgment hearing.
“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.” Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So.3d 1190, 1193 (Fla. 2d DCA 2011) (citing S. Developers & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So.3d 56, 62–63 (Fla. 2d DCA 2011) ). Leave to amend should be “given freely when justice so requires.” Fla. R. Civ. P. 1.190(a). Further, “ ‘[c]ourts should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.’ ” Laurencio, 65 So.3d at 1193 (emphasis...
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Morgan v. Bank of N.Y. Mellon
...prior to acceleration, because the defense concerns the Bank's failure to comply with its own documents. See Cobbum v. Citimortgage, Inc., 158 So.3d 755, 757 (Fla. 2d DCA 2015). The Bank also cannot show prejudice as to Appellant's defense that it did not comply with the notice requirement ......
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Reyes v. Bac Home Loans Servicing L.P.
...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 ......
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RV-7 Prop., Inc. v. Stefani De La O, Inc., 3D14–2965.
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