Disregard Of Paragraph 22, Unreasonable Failure To Allow Amendment To Answer, Defenses Lead To F'closure Reversal For Clueless Florida Judge

From a recent ruling by a Florida appeals court:

• In this mortgage foreclosure action, Pedro F. Laurencio and Esteves Pedro appeal the trial court's order granting summary judgment in favor of Deutsche Bank National Trust Company.
  
  Laurencio argues, among several things, that Deutsche Bank failed to meet a condition precedent to filing the complaint and filed suit prematurely, without giving them adequate notice and an opportunity to cure the alleged default.(1)
  
  Laurencio also argues that the trial court erred in denying the motion to amend the answer and affirmative defenses.(2)
  
  We agree on both issues and reverse.(3)

The trial judge in this case, Lee County Senior Trial Judge Hugh E. Starnes, obviously failed to meet the judicial challenge of getting it right on a foreclosure ruling, swinging and missing on the legal basics. By the way, this is not the first time Starnes has attained notoriety for his work on the bench in foreclosure cases, and was the target of a less than flattering February, 2011 op-ed column in The News-Press (Fort Myers, Florida).(4)

Regrettably for Judge Starnes, allowing himself to get roped in from out of retirement (possibly succumbing to the lure of a paycheck to supplement his pension) for a role on the notorious Fort Myers, Florida Foreclosure 'Rocket Docket'(5) may have, in hindsight, been ill-advised in that it soiled what for all I know may have been an otherwise unblemished judicial career. To the extent he thought he was doing a good deed by helping out the local court with the foreclosure backlog, maybe he should have known better, being mindful of the old saw, "No good deed goes unpunished."

For the full ruling, see Laurencio v. Deutsche Bank National Trust Co., 2D10-2448 (Fla. App. 2d DCA July 27, 2011).

(1) This screw-up by the trial judge resulted from his blatant disregard in failing to force the bankster in this case to comply with Paragraph 22 of the mortgage, which sets forth pre-suit requirements, including a requirement that the foreclosing bankster first give the borrower thirty days' notice and an opportunity to cure the default prior to filing suit.

On this point, the court stated (bold text is my emphasis):

• In this case, Deutsche Bank failed to meet its summary judgment burden because the record before the trial court reflected a genuine issue of material fact as to whether Deutsche Bank had complied with conditions precedent to filing the foreclosure action.
  
  In a case with nearly identical facts, this court recently reversed a summary judgment of foreclosure. See Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011). In Konsulian, we concluded that the bank was not entitled to summary judgment because it had not established that it had met the conditions precedent to filing suit. Id. at 1285. The record in that case did not establish that the bank had given the defendant the notice which the mortgage required. Id. We reach the same conclusion in this case.

(2) On this point, the court stated (bold text is my emphasis):

• The trial court also erred in denying Laurencio's motion for leave to file an amended answer and affirmative defenses. Leave of court to amend a pleading shall be given freely when justice so requires. Fla. R. Civ. P. 1.190(a). Public policy favors the liberal amendment of pleadings, and courts should resolve all doubts in favor of allowing the amendment of pleadings to allow cases to be decided on their merit. S. Developers & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So.3d 56, 62 (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. Id. at 62-63. "Courts should be especially liberal when leave to amend `is sought at or before a hearing on a motion for summary judgment.'" Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So.2d 1132, 1135 (Fla. 5th DCA 1998) (quoting Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-op. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991)).
  
  Here, the record does not show that Deutsche Bank established any of the three exceptions to amendment of pleadings. There is no basis for concluding that Laurencio abused the privilege to amend or that Deutsche Bank would be prejudiced by the amendment which alleges, inter alia, the bank's failure to comply with its own documents.
  
  And the amendment clearly would not be futile considering the unrefuted allegations that Deutsche Bank failed to comply with conditions precedent to suit. See Wayne Creasy Agency, Inc. v. Maillard, 604 So.2d 1235, 1236 (Fla. 3d DCA 1992) ("A denial of leave to amend a pleading is an abuse of discretion where the proffered amendment indicates that a plaintiff can state a cause of action. The same holds true where a defendant demonstrates he could prevail with the assertion of a properly available defense." (citation omitted)). Therefore, the trial court should have granted Laurencio leave to file an amended answer and affirmative defenses.

(3) In footnote 2 of the Florida appeals court ruling, the 3-judge panel noted that, since it decided this appeal based on the two issues discussed in the opinion, it was unnecessary to address the merits of the homeowner's other arguments. Maybe the court felt the need to show some mercy on Judge Starnes by declining to rule on the remaining (possibly erroneously-decided) issues, thereby avoiding the appearance of 'piling on' their 'senior' lower court colleague.

(4) Regrettably, the op-ed piece does not appear to be available any longer on The News Press website.

See Some 'Rocket Docket' Judges Remain Unabashed In Their Cluelessness As They Continue To Bulldoze Home Foreclosure Cases Through System for a 'copied-and-pasted' reasonable facsimile of The News Press op-ed column.

See: The Florida Foreclosure Fraud Weblog: Banks Don’t Have to Follow the Rules in Lee County, Says Judge Starnes for a somewhat scathing observation on one of Starnes' rulings in a foreclosure matter.

(5) For more on the no-longer-state-funded, and now-defunct Fort Myers, Florida Foreclosure 'Rocket Docket,' see:

• The Wall Street Journal: A Florida Court's 'Rocket Docket' Blasts Through Foreclosure Cases: (2 Questions, 15 Seconds, 45 Days to Get Out; 'What's to Talk About?' Says a Judge);


• CNN Video: As Foreclosures Mount, Florida Court Turns To 'Rocket Docket' (to watch Judge Starnes in action).