Glen Garron, LLC v. Buchwald, Case No. 5D15–2279

• Decision Date: 03 February 2017
• Docket Number: Case No. 5D15–2279
• Citation: 210 So.3d 229
• Parties: GLEN GARRON, LLC, Appellant, v. Marla BUCHWALD, etc., et al., Appellee.
• Court: Florida District Court of Appeals

210 So.3d 229

GLEN GARRON, LLC, Appellant,

v.Marla BUCHWALD, etc., et al., Appellee.

Case No. 5D15–2279

District Court of Appeal of Florida, Fifth District.

Opinion filed February 3, 2017

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 So.3d 1209, 1211 (Fla. 5th DCA 2014) (citing Thompson v. Napotnik , 923 So.2d 537, 539 (Fla. 5th DCA 2006) ).

Motions for judgment on the pleadings are "decided only on the pleadings and attachments thereto and may be granted only if the movant is entitled to judgment as a matter of law." Id . at 1212 (citing Siegel v. Whitaker , 946 So.2d 1079, 1081 (Fla. 5th DCA 2006) ). "In passing on a motion for judgment on the pleadings made by a defendant, all well-pleaded material allegations of the complaint and all fair inferences to be drawn therefrom are taken as true and the inquiry concerns whether the plaintiff has stated a viable cause of action." Id. When a party refers to a document in the complaint, the trial court may use that document to assess the nature of the claims alleged in the complaint. See U.S. Fire Ins. Co. , 134 So.3d at 479 (citing Veal v. Voyager Prop. & Cas. Ins. Co. , 51 So.3d 1246, 1249–50 (Fla. 2d DCA 2011) ).

Rule 1.130(a) provides:

All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings , shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

Fla. R. Civ. P. 1.130(a) (emphasis added). The exhibits attached to the pleading are "considered a part thereof for all purposes." Fla. R. Civ. P. 1.130(b). "A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint." Contractors Unlimited, Inc. v. Nortrax Equip. Co. Se. , 833 So.2d 286, 288 (Fla. 5th DCA 2006) (citing Samuels v. King Motor Co. of Fort Lauderdale , 782 So.2d 489, 500 (Fla. 4th DCA 2001) ).

The purpose of this rule "is to apprise the defendant of the nature and extent of the cause of action so that the defendant may plead with greater certainty." Amiker v. Mid–Century Ins. Co. , 398 So.2d 974, 975 (Fla. 1st DCA 1981) (citing Sachse v. Tampa Music Co. , 262 So.2d 17 (Fla. 2d DCA 1972) ). Rule 1.130 does not require attachment of the entire contract, but only the attachment or the incorporation into the pleading of the material portions of the contract on which the action is based. See Zorie , 146 So.3d at 1212 (finding that the attachment to the complaint of a summary of the promissory note was sufficient to meet the requirement in rule 1.130 ); Amiker , 398 So.2d at 976 ("We further note that Rule 1.130(a) does not require attachment of the entire contract, only attachment or incorporation of the contract's material provisions.").

A foreclosure action is an equitable remedy that is based upon the mortgage. Junction Bit & Tool Co. v. Vill. Apartments, Inc. , 262 So.2d 659, 660 (Fla. 1972) ; Mohican Valley, Inc. v. MacDonald , 443 So.2d 479, 481 (Fla. 5th DCA 1984), limited on other grounds by Med. Fac. Dev., Inc. v. Little Arch Creek Props., Inc. , 675 So.2d 915, 918 (Fla. 1996). A mortgage is an executory contract "in which one generally promises to allow a future sale of real property if a debt is not paid," and "[i]t is also a specific lien on the property described in the mortgage." Pitts v. Pastore , 561 So.2d 297, 301 (Fla. 2d DCA 1990) (citing § 697.02, Fla. Stat. (1987) ). The acceleration clause in the mortgage "confers a contract right upon the note or mortgage holder which he may elect to enforce upon default." David v. Sun Fed. Sav. & Loan Ass'n , 461 So.2d 93, 95 (Fla. 1984) (citing Campbell v. Werner , 232 So.2d 252, 255 (Fla. 3d DCA 1970) ). Thus, the mortgage must be attached to the foreclosure complaint. See Fla. R. Civ. P. 1.130(a).

By contrast, an action on the note is an action at law for damages for breach of the note. See Royal Palm Corp. Ctr. Ass'n v. PNC Bank, NA , 89 So.3d 923, 929–33 (Fla. 4th DCA 2012). While a promissory note must be attached to the complaint when suing for payment of the promissory note, see Student Loan Mktg. Ass'n v. Morris , 662 So.2d 990, 991 (Fla. 2d DCA 1995), in a foreclosure case, the note itself is not required to be attached to the complaint under rule 1.130, as the object of a foreclosure action is to force the sale of the property through the plaintiff's contractual rights that were granted by the mortgage.⁵ See Jaffer v. Chase Home Fin., LLC , 155 So.3d 1199, 1202 (Fla. 4th DCA 2015) (finding that bank stated claim in its complaint despite attaching copy of note to complaint that did not...