       Third District Court of Appeal
                                State of Florida

                             Opinion filed May 6, 2015.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                No. 3D14-1730
                          Lower Tribunal No. 12-36523
                              ________________


                        Wells Fargo Bank, N.A., etc.,
                                     Appellant,

                                         vs.

                            Melissa M. Donaldson,
                                     Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.

      Lapin & Leichtling, LLP, and Jonathan R. Rosenn, for appellant.

      Graham Legal, P.A., and H. Dillon Graham, III, for appellee.


Before SHEPHERD, C.J., and FERNANDEZ and LOGUE, JJ.

      FERNANDEZ, J.

      Wells Fargo Bank, N.A. etc. appeals from a final judgment of involuntary

dismissal following a non-jury trial. We reverse the order of dismissal because the
record supports the denial of Wells Fargo’s technical admissions in the underlying

mortgage foreclosure suit filed against appellee Melissa M. Donaldson.

      Wells Fargo filed suit on September 12, 2012. Wells Fargo alleged in its

verified complaint that it was the holder of the note and mortgage, and it was

entitled to enforce them. At paragraph 4 of the complaint, Wells Fargo referenced

an assignment of the subject note and mortgage recorded on March 9, 2010.

      Wells Fargo attached a copy of an adjustable rate note to the complaint,

which contains a blank endorsement.1 Wells Fargo also attached a copy of the

mortgage.

Donaldson filed her first request for admissions on May 22, 2013. She requested

Wells Fargo admit that it was not the holder of the original mortgage note; it was

not the owner of the original note; the original lender had not transferred

possession of the original note or any rights to Wells Fargo; no assignment of the

mortgage to Wells Fargo occurred before the foreclosure action was filed; and that

Wells Fargo was not in possession of the original note.

      Donaldson answered and raised affirmative defenses. Its defenses included

that Wells Fargo had no standing to sue; was not the lawful assignee of the note
1 Specifically, the note is payable to The Mortgage Store Financial, Inc., a

California corporation and contains three stamped endorsements. The first
endorsement is from The Mortgage Store Financial, Inc., a California corporation,
to Countrywide Bank, N.A. The second endorsement is from Countrywide Bank,
N.A. to Countrywide Home Loans, Inc. The third endorsement from Countrywide
Home Loans, Inc. is blank.


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and mortgage; could not produce the original note and mortgage; was not the

holder or owner of the note and mortgage; and was not in possession of the note

and mortgage.

      In its reply to Donaldson’s answer and affirmative defenses, Wells Fargo

denied Donaldson’s allegations. Wells Fargo alleged that it was in possession of

the original note endorsed in blank. Wells Fargo also alleged that it was not

required to produce a written or recorded assignment to maintain its foreclosure

suit. Wells Fargo nonetheless attached an assignment of mortgage to its reply.

      Wells Fargo moved for summary judgment, which the trial court denied.

The trial court subsequently involuntary dismissed the cause at trial. This, we

conclude, constitutes error where the record contains evidence that contradicts

Wells Fargo’s technical admissions.

      This Court’s standard of review of the trial court’s factual determinations is

abuse of discretion, and the test for reasonableness is as follows:

            If reasonable men could differ as to the propriety of the
            action taken by the trial court, then the action is not
            unreasonable and there can be no finding of an abuse of
            discretion. The discretionary ruling of the trial judge
            should be disturbed only when his decision fails to satisfy
            this test of reasonableness.



Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).            The trial court’s

ruling has a presumption of correctness and the burden is upon the appellant to


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demonstrate reversible error. Applegate v. Barnett Bank of Tallahassee, 377 So.

2d 1150, 1152 (Fla. 1979).

        There is no dispute that Wells Fargo failed to timely respond to Donaldson’s

request for admissions. Florida Rule of Civil Procedure 1.370 provides, in relevant

part:

             (a) Request for Admission . . . The matter is admitted
                 unless the party to whom the request is directed serves
                 upon the party requesting the admission a written
                 answer or objection addressed to the matter within 30
                 days after service of the request.

                 ...


             (b) Effect of Admission. Any matter admitted under this
                 rule is conclusively established unless the court on
                 motion permits withdrawal or amendment of the
                 admission.

Wells Fargo’s failure to do so, however, does not preclude its entitlement to relief

from the effect of its technical admissions.

        We held in Sher v. Liberty Mutual Insurance Company, 557 So. 2d 638, 639

(Fla. 3d DCA 1990), that disputed issues of fact precluded the entry of summary

judgment since the record was replete with evidence that contradicted the

admissions created by a failure to timely respond. Similarly, in Ruiz v. De Varona,

785 So. 2d 508, 509 (Fla. 3d DCA 2000), this Court noted that “dismissal based

solely on the failure to timely answer a request for admissions would be



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inappropriate when the pleadings make clear the opposing party’s position and the

existence of disputed facts”.

      Here, like in Sher and Ruiz, the record supports the denial of Wells Fargo’s

technical admissions. The allegations contained in the verified complaint

contradicted the technical admissions. Wells Fargo alleged that it owned the note

and that it had the right to foreclose.       Furthermore, the attachments to the

complaint contradicted the technical admissions. Wells Fargo attached a copy of

the note to the verified complaint, which was endorsed in blank.2       Additionally,

Wells Fargo denied its technical admissions in its reply to Donaldson’s answer and

affirmative defenses.

      Accordingly, we reverse the order of dismissal and remand the cause for

further proceedings.

      Reversed and remanded.




2   The Appendix to Wells Fargo’s Initial Brief contains a response to Donaldson’s
first request for admissions, served July 9, 2013; motion for leave to file a response
to Donaldson’s first request for admissions, and answer and affirmative defenses,
served July 18, 2013; and an answer and objections to Donaldson’s interrogatories,
served August 1, 2013. These, however, are not contained in the record on appeal.

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