               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                         IN THE DISTRICT COURT OF APPEAL
                                         OF FLORIDA
                                         SECOND DISTRICT

ENEIDA REYES,                  )
                               )
          Appellant,           )
                               )
v.                             )                       Case No. 2D15-3495
                               )
BAC HOME LOANS SERVICING L.P., )
                               )
          Appellee.            )
                               )

Opinion filed September 6, 2017.

Appeal from the Circuit Court for
Hillsborough County; Perry A. Little,
Senior Judge.

David D. Sharpe of The Law Office of
Dario Diaz, P.A., Tampa, for
Appellant.

Jessica Conte and Kimberly N.
Hopkins of Shapiro, Fishman &
Gache, LLP, Tampa, for Appellee.


ROTHSTEIN-YOUAKIM, Judge.

              Eneida Reyes appeals from a final summary judgment of foreclosure in

favor of Plaintiff, BAC Home Loans Servicing, L.P. Specifically, she argues that the trial

court erred in denying her motion to amend her answer and affirmative defenses and

subsequently granting BAC's motion for summary judgment. We agree with Reyes and

reverse.
                                         FACTS

             Reyes bought her Tampa home in 1983. In 2007, at the age of seventy-

four, she refinanced the mortgage on her home for approximately $100,000. Before the

refinance, her monthly principal and interest payment (P&I) was about $250. After the

refinance, her monthly P&I was about $885.

             BAC filed its foreclosure complaint on January 21, 2010, alleging that

Reyes had last paid her mortgage in September 2009. After BAC moved for summary

judgment on September 1, 2011, Reyes retained counsel, who successfully moved to

vacate a previously entered default and filed an answer that included eleven affirmative

defenses. In December 2012, following a hearing, the trial court struck eight of the

affirmative defenses without prejudice and gave Reyes thirty days to file an amended

answer and affirmative defenses. Reyes did not file an amended answer and

affirmative defenses within those thirty days. Instead, the parties engaged in discovery

and a failed attempt at mediation.

             Finally, a hearing on BAC's still-pending motion for summary judgment

was scheduled for May 19, 2015. Shortly before the hearing, Reyes filed an affidavit in

opposition to the motion for summary judgment, a transcript of the recent deposition of

BAC's corporate representative, a motion to amend her answer and affirmative

defenses, and a memorandum of law on her affirmative defense of predatory lending.

In the motion to amend, Reyes's counsel explained that he had "just recently uncovered

the fact that the affirmative defenses were not re-pleaded." He also asserted that the

parties had been engaged in ongoing settlement efforts, that Reyes had made

reasonable attempts to resolve the case but BAC had been uncooperative, and that the




                                          -2-
deposition testimony of BAC's corporate representative supported Reyes's affirmative

defense of predatory lending. At the May 19, 2015, hearing, the trial court denied

Reyes's motion to amend, granted BAC's motion for summary judgment, and entered a

Uniform Final Judgment of Foreclosure.

              Reyes timely moved for rehearing. 1 At the July 6, 2015, hearing on that

motion, Reyes's counsel reiterated the trial court's apparent rationale for denying the

motion to amend: "[T]he court was not satisfied with the length of time that had elapsed

since . . . [the] order striking most of the Affirmative Defenses . . . ." Counsel explained

that he had drafted the amended pleading in 2011 and Reyes had verified it at that time,

but, due to his own oversight, it had never been filed. He characterized his oversight as

"excusable neglect" and argued that BAC would suffer no prejudice if the court were to

grant the motion to amend because the affirmative defenses were essentially the same

defenses that Reyes had raised previously, albeit more fully developed. Unswayed, the

court stated: "I'm going to stand by my original ruling. I find no excusable neglect for

late filing of the Amended Affirmative Defenses until a week before [the hearing on the

motion for summary judgment]." This appeal followed.

                                         ANALYSIS

              As noted above, there is no transcript of the May 19, 2015, hearing on

Reyes's motion to amend and BAC's motion for summary judgment. Although BAC

urges this court to affirm in light of the lack of a transcript, we are not constrained to do



              1Our record lacks, among other things, a transcript of the May 19, 2015,
hearing, an order denying Reyes's motion to amend, an order granting BAC's motion for
summary judgment (although the first paragraph of the final judgment of foreclosure
states, "[BAC's] Motion for Summary Judgment is GRANTED"), and Reyes's motion for
rehearing.


                                             -3-
so if there is error apparent on the face of the record. See Celebrity Cruises, Inc. v.

Fernandes, 149 So. 3d 744, 749 n.3 (Fla. 3d DCA 2014) (explaining that, although

appellant's failure to provide transcript generally dictates affirmance, appellate court

may review lower court's judgment for error apparent on its face notwithstanding

absence of transcript). Here, the record comprises, among other things, BAC's

complaint, Reyes's original answer and affirmative defenses, Reyes's motion to amend

and her proposed amended answer and affirmative defenses, BAC's response to

Reyes's motion for rehearing, and a transcript of the July 6, 2015, hearing on Reyes's

motion for rehearing, which included a "recap" of the May 19 hearing on the motion to

amend. Under these circumstances, the lack of a transcript of the May 19 hearing does

not impede our consideration of Reyes's challenge to the trial court's denial of her

motion to amend and ensuing grant of BAC's motion for summary judgment. See Houk

v. PennyMac Corp., 210 So. 3d 726, 730-31 (Fla. 2d DCA 2017) (holding that absence

of transcript was not critical to determination of appeal where record was sufficient to

determine whether trial court had properly entered summary judgment).

              The trial court denied Reyes's motion to amend because Reyes filed it two

weeks before the scheduled hearing on BAC's motion for summary judgment and

because the court found that counsel had failed to establish "excusable neglect" for the

delay. But the bare timing of a motion to amend and whether counsel's failure to seek

amendment sooner constituted "neglect," excusable or otherwise, are, at most, ancillary

to the primary considerations of prejudice to the opposing party, abuse of the privilege,

and futility of the proposed amended pleading. Laurencio v. Deutsche Bank Nat'l Tr.

Co., 65 So. 3d 1190, 1193 (Fla. 2d DCA 2011) ("A trial court’s refusal to permit an




                                            -4-
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." (quoting S. Developers & Earthmoving,

Inc. v. Caterpillar Fin. Servs. Corp., 56 So. 3d 56, 62-63 (Fla. 2d DCA 2011))); see also

RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So. 3d 915, 917 (Fla. 3d DCA 2016) ("If

such dangers cannot be clearly established, 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 that

cases may be decided on their merits,' " S. Developers, 56 So. 3d at 62 (quoting EAC

USA, Inc. v. Kawa, 805 So. 2d 1, 5 (Fla. 2d DCA 2001)), and that "[a]ll doubts must be

resolved in favor of allowing the amendment of pleadings," Id. (citing EAC USA, Inc.,

805 So. 2d at 5); see also Fla. R. Civ. P. 1.190(a) ("Leave of court [to amend a

pleading] shall be given freely when justice so requires.").

              The record does not establish any of the dangers that would support the

denial of Reyes's motion to amend. First, as this was her first request to do so, it did not

constitute an abuse of the privilege. See, e.g., Life Gen. Sec. Ins. Co. v. Horal, 667 So.

2d 967, 969 (Fla. 4th DCA 1996) ("Since Life General had not sought to amend its

pleadings before the instance we now review, it cannot be said that the appellant has

abused the privilege."); cf. Alvarez v. DeAguirre, 395 So. 2d 213, 217 (Fla. 3d DCA

1981) ("While we stress that it is not the number of amendments which determines the

abuse, it has been held that '[g]enerally three ineffective attempts to state the same

cause of action or defense are enough,' . . . and the 'liberality in permitting amendments




                                           -5-
decreases as the action progresses and as the number of amended pleading[s]

increases.' " (quoting Henry P. Trawick, Jr., Trawick's Florida Practice and Procedure §§

14-2 & 14-3 (1980 ed.))) (first alteration in original).

              Moreover, BAC failed to establish that it would have been prejudiced by

the amendment. Although it questioned whether Reyes's neglect was excusable and

complained generally about the "last minute" timing of Reyes's motion and its frustrated

expectations concerning how the summary judgment proceeding would unfold, the crux

of its objections was that the motion simply was "untimely," which the courts of appeal

have rejected as sufficient basis for denying leave to amend. See, e.g., RV-7 Prop.,

187 So. 3d at 917 (no prejudice where motion to amend was filed two days before

summary judgment hearing); Crown v. Chase Home Fin., 41 So. 3d 978, 980 (Fla. 5th

DCA 2010) (no prejudice where proposed amended answer was filed after filing of

motion for summary judgment even though it raised several affirmative defenses not

addressed in motion for summary judgment); Carib Ocean Shipping, Inc. v. Armas, 854

So. 2d 234, 235-37 (Fla. 3d DCA 2003) (no prejudice where proposed amended answer

raising new affirmative defense was filed "shortly before trial" and despite defendant's

concession that the failure to include defense in previous pleading "was pure

negligence"); Leavitt v. Garson, 528 So. 2d 108, 111 (Fla. 4th DCA 1988) (no prejudice

where motion to amend was made before hearing on motion for summary judgment and

before case was set for trial).

              Finally, the record does not establish that amendment would have been

futile. "Any doubt with respect to futility should be resolved in favor of allowing the

amendment, especially when leave to amend is sought at or before the summary




                                              -6-
judgment hearing." RV-7 Prop., 187 So. 3d at 917. We decline to conclude that

amendment would have been futile when the trial court struck Reyes's original

affirmative defenses without prejudice and specifically provided how she could re-plead

one of those defenses. Reyes repleaded her affirmative defenses with additional facts

and specificity, and while we do not say whether she should ultimately prevail on any of

them, neither the record nor BAC's arguments below or on appeal refute their potential

viability as a matter of law.

              Because the trial court erred in denying Reyes's motion to amend, it

necessarily erred in granting BAC's motion for summary judgment. In concluding that

reversal is warranted on procedural grounds, however, we decline to address Reyes's

substantive challenges to the court's rejection of her affirmative defenses regarding

BAC's standing, BAC's asserted failure to comply with conditions precedent, and BAC's

asserted failure to comply with 12 U.S.C. § 1701x(c)(5).

                                     CONCLUSION

              The trial court abused its discretion in denying Reyes's motion to amend

her answer and affirmative defenses and, consequently, erred in granting BAC's motion

for summary judgment. Accordingly, we reverse the final judgment of foreclosure and

remand for vacatur of the order denying Reyes's motion to amend and for further

proceedings consistent with this opinion.

              Reversed and remanded with directions.


SILBERMAN and KELLY, JJ., Concur.




                                            -7-
