Green v. Jpmorgan Chase Bank, N.A.

• Decision Date: 05 April 2013
• Docket Number: No. 5D12–870.,5D12–870.
• Citation: 109 So.3d 1285
• Parties: Charles R. GREEN, Appellant, v. JPMORGAN CHASE BANK, N.A., Appellee.
• Court: Florida District Court of Appeals

109 So.3d 1285

Charles R. GREEN, Appellant,

v.JPMORGAN CHASE BANK, N.A., Appellee.

No. 5D12–870.

District Court of Appeal of Florida, Fifth District.

April 5, 2013.

Charles R. Green, Indialantic, pro se.

Kimberly S. Mello, of Greenberg Traurig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, Ft. Lauderdale, for Appellee.

PALMER, J.

In this mortgage foreclosure matter, Charles R. Green appeals the final judgment of foreclosure entered in favor of JPMorgan Chase Bank, N.A.(Bank).Determining that the trial court erred in denying Green's motion to add a counterclaim and in granting the Bank's motion for summary judgment, we reverse.

The Bank filed a mortgage foreclosure complaint against Green.Green filed an answer raising multiple affirmative defenses.He later filed a motion seeking leave of court to file a counterclaim containing several counts.The Bank filed a motion for summary judgment.Both motions were heard together, after which the trial court denied Green's motion to add a counterclaim, granted the Bank's motion for summary judgment, and entered a final judgment of foreclosure.

On appeal, Green argues that the trial court erred in denying his motion to add a counterclaim and in granting the Bank's motion for summary judgment when the Bank had not refuted all of his affirmative defenses.We agree.

First, the court erred in denying Green's motion to add a counterclaim.A trial court's denial of a motion to add a counterclaim is reviewed for abuse of discretion.SeeCedar Mountain Estates, LLC v. Loan One, LLC,4 So.3d 15, 16(Fla. 5th DCA2009).All doubts must be resolved in favor of allowing amendment, and “[p]ublic policy ... favors the liberal granting of leave to amend where the failure to do so will likely prevent the cause from being resolved on its merits.”Crown v. Chase Home Fin.,41 So.3d 978, 980(Fla. 5th DCA2010).Consequently, “[r]efusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.”Sonny Boy, L.L.C. v. Asnani,879 So.2d 25, 28(Fla. 5th DCA2004).

One count of Green's proposed counterclaim, and the only count he addresses on appeal, alleged that the Bank violated the federal Real Estate Settlement Procedures Act (RESPA) by failing to notify him of a change in the servicer of his loan.¹Specifically, the count alleged the following.Green obtained a loan from Washington Mutual Bank, FA (WaMu).Through this transaction, WaMu may have acquired and retained a servicing interest in the loan.The Bank claimed to possess servicing rights in the loan.However, the Bank failed to notify Green that it was the new servicer within 30 days of assignment of servicing, as required by RESPA.As a result, the Bank denied Green a good-faith opportunity to determine who the new servicer was, preventing him from making mortgage payments to avoid foreclosure.

The Bank responded that this count would be futile because Green could not state a valid claim, since he made eight monthly payments after servicing was transferred to the Bank.In support, the Bank relied on (1) a Purchase and Assumption Agreement showing that the Bank bought WaMu and its assets out of receivership on September 25, 2008; (2) a Customer Account Activity Statement showing that, after September 25, 2008, Green made at least 12 payments on the account; and (3) an affidavit of amounts due and owing.In addition, the Bank's counsel represented to the court that the Bank regularly contacted Green by mail and phone to explore home retention options.In support, the Bank relied on (1) a letter from the Bank to Green, and (2) a Consolidated Notes Log describing various phone interactions between the Bank and Green after he defaulted on the loan.Green objected that the Bank presented no sworn testimony.Green represented that he was never aware that the Bank was involved until he was served with the complaint, and he denied that he had made any payments to the Bank.

The Bank failed to conclusively show that this count of Green's proposed counterclaim would be futile.The only evidence submitted by the Bank was the affidavit of amounts due and owing.²That affidavit did not show specific payments by Green or the dates on which they were made.As such, the trial court erred in denying his motion as to this count.

Second, the trial court erred in...