                                            IN THE DISTRICT COURT OF APPEAL
                                            FIRST DISTRICT, STATE OF FLORIDA

LINDA G. MORGAN,

      Appellant,

v.                                          CASE NO. 1D15-2401

THE BANK OF NEW YORK MELLON,
f/k/a THE BANK OF NEW YORK,
AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF
CWALT 2400-25CB,

     Appellee.
_____________________________/

Opinion filed September 19, 2016.

An appeal from the Circuit Court for Walton County.
William P. White, Jr., Judge.

Louis C. Arslanian, Hollywood, for Appellant.

J. Kirby McDonough and S. Douglas Knox of Quarles & Brady, LLP, Tampa, for
Appellee.


              OPINION ON MOTION FOR REHEARING EN BANC

B.L. THOMAS, J.

      This cause is before us on Appellee’s Motion For Rehearing En Banc.

We deny the motion. We withdraw our opinion of June 28, 2016, and substitute

this opinion in its place.
      Appellant Linda G. Morgan appeals the trial court’s order denying her pre-

trial motion for leave to amend her answer to raise affirmative defenses. Appellant

is a defendant in the instant foreclosure action initiated by Appellee, The Bank of

New York Mellon (the Bank), acting as trustee. After the trial court denied

Appellant’s motion to amend, the case proceeded to trial, and a final judgment of

foreclosure was entered in favor of the Bank. We hold that the trial court abused

its discretion in denying Appellant’s motion to amend and vacate the trial court’s

final judgment. We remand the case with instructions that Appellant be permitted

to file an amended answer raising affirmative defenses.

                                   Background

      On December 17, 2009, the Bank filed a two-count complaint in the trial

court seeking to reestablish a lost promissory note and foreclose a mortgage on real

property owned by Appellant. The Bank alleged that Appellant stopped making

mortgage payments on August 1, 2009, and thus sought the full amount due under

the note secured by the mortgage. In January 2010, Appellant retained counsel to

represent her in the matter. Appellant’s counsel filed several motions in 2010 and

2011, but never filed an answer to the Bank’s complaint.

      Forward progress on the case stalled, and no significant action was taken

until February 2014. That month, Appellant filed a pro se motion seeking to

dismiss her counsel, alleging that she had not spoken to her counsel in over two

                                         2
years. Also in February, the Bank found the original promissory note and filed it

with the court. The original note named First Magnus Financial Corporation as

payee. The note had two special endorsements, first to Countrywide Document

Custody Services and then to Countrywide Home Loans; the third endorsement

was blank; and none of the endorsements were dated. After finding the original

note, the Bank dropped Count I of its complaint that sought to reestablish the note.

      In March 2014, Appellant’s counsel was discharged, and Appellant was

ordered to retain new counsel. Appellant also filed two pro se answers.

      The case was eventually set to be tried on January 28, 2015. On January 15

(13 days before trial), Appellant’s newly-retained counsel filed a motion seeking

leave to amend Appellant’s answer.         The proposed amended answer raised

affirmative defenses for the first time and was the only pleading prepared by an

attorney on Appellant’s behalf. The trial court denied the motion to amend as

“untimely” and also denied Appellant’s motion for reconsideration. The case

proceeded to trial, and a final judgment of foreclosure in favor of the Bank was

entered. This appeal followed.

                                      Analysis

      The ruling on a motion to amend a pleading is within the discretion of the

trial court, and the court’s decision will not be overturned on appeal unless abuse

of discretion is demonstrated. Holy Temple Church of God in Christ, Inc. v.

                                         3
Maxwell, 578 So. 2d 877, 878 (Fla. 1st DCA 1991). The Florida Rules of Civil

Procedure encourage a policy of liberality in allowing litigants to amend their

pleadings, especially prior to trial; this policy exists so that cases will be tried on

their merits. Fla. R. Civ. P. 1.190(a); Hatcher v. Chandler, 589 So. 2d 428, 429

(Fla. 1st DCA 1991). Broad discretion is given to the trial court to grant or deny a

motion to amend; as such, there is no bright-line rule as to when a motion to amend

is “untimely.” See Greenburg v. Johnston, 367 So. 2d 229, 231 (Fla. 2d DCA

1979). Instead, “[t]he relevant inquiry is whether ‘allowing the amendment would

prejudice the opposing party, the privilege to amend has been abused, or

amendment would be futile.’” Cedar Mountain Estates, LLC v. Loan One, LLC, 4

So. 3d 15, 16 (Fla. 5th DCA 2009) (quoting State Farm Fire & Cas. Co. v. Fleet

Fin. Corp., 724 So. 2d 1218, 1219 (Fla. 5th DCA 1998)). Absent exceptional

circumstances, motions for leave to amend should be granted, and refusal to do so

constitutes an abuse of discretion. Thompson v. Jared Kane Co., Inc., 872 So. 2d

356, 360 (Fla. 2d DCA 2004).

      Appellant has not abused the privilege to amend, because the denied motion

at issue was the first time she sought to amend her answer. See Thompson v.

Publix Supermarkets, Inc., 615 So. 2d 796, 797 (Fla. 1st DCA 1993). Therefore,

the question is whether Appellant’s proposed amended answer would prejudice the

Bank or would be futile.

                                          4
      Whether granting the proposed amendment would prejudice the opposing

party is analyzed primarily in the context of the opposing party’s ability to prepare

for the new allegations or defenses prior to trial. Dimick v. Ray, 774 So. 2d 830,

833 (Fla. 4th DCA 2000). Accordingly, rule 1.190’s liberal amendment policy

diminishes as a case progresses to trial. Ohio Cas. Ins. Co. v. MRK Constr., Inc.,

602 So. 2d 976, 978 (Fla. 2d DCA 1992).

      Appellant filed her motion to amend 13 days before trial. Her proposed

amended answer raised eight affirmative defenses, three of which she raises on

appeal: (1) failure to comply with a condition precedent, i.e. acceleration;

(2) failure to comply with a condition precedent, i.e. notice pursuant to section

559.715, Florida Statutes (2016); and (3) lack of standing. The Bank cannot show

that it would be prejudiced by Appellant’s defense that it did not provide her with

the 30-day notice required by paragraph 22 of the mortgage prior to acceleration,

because the defense concerns the Bank’s failure to comply with its own

documents. See Cobbum v. Citimortgage, Inc., 158 So. 3d 755, 757 (Fla. 2d DCA

2015). The Bank also cannot show prejudice as to Appellant’s defense that it did

not comply with the notice requirement in section 559.715 before filing suit. In its

complaint, the Bank alleged that all conditions precedent to filing suit had been

performed or had occurred, and courts have held that “requiring a plaintiff to prove

its allegations is not prejudice to the plaintiff; it merely offers due process to the

                                          5
defendants.”     Thompson, 872 So. 2d at 360.           Finally, the Bank has not

demonstrated prejudice as to Appellant’s defense that it lacked standing to

foreclose.     Under Florida law, “[t]he party seeking foreclosure must present

evidence that it owns and holds the note and mortgage to establish standing to

proceed with a foreclosure action.” Mazine v. M & I Bank, 67 So. 3d 1129, 1131

(Fla. 1st DCA 2011) (citing Servidio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105

(Fla. 4th DCA 2010)).      Because the Bank already had the burden to present

evidence establishing its standing, it cannot claim it is prejudiced by Appellant’s

defense challenging the sufficiency of that evidence.

        Courts have held that proposed amendments are futile when they are not

pled with sufficient particularity or are “insufficient as a matter of law.”

Thompson v. Bank of N.Y., 862 So. 2d 768, 770 (Fla. 4th DCA 2003). Defenses

are insufficient as a matter of law when they are “conclusory in their content, and

lacking in any real allegations of ultimate fact demonstrating a good defense to the

complaint.” Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 137-38 (Fla.

4th DCA 1988).

        Appellant’s defenses that the Bank failed to comply with the conditions

precedent contained in her mortgage and section 559.715, Florida Statutes, are not

futile. 1 Rule 1.120(c) of the Florida Rules of Civil Procedure requires denials of


1
    The case law in Florida is unclear regarding section 559.715 and whether it
                                        6
performance of conditions precedent be made “specifically and with particularity.”

A defendant must identify “both the nature of the condition precedent and the

nature of the alleged noncompliance or nonoccurrence.” Deutsche Bank Nat’l

Trust Co. v. Quinion, 41 Fla. L. Weekly D177 *3 (Fla. 2d DCA 2016).

Appellant’s proposed answer met these requirements for both conditions

precedent.

      Appellant’s proposed defense that the Bank lacked standing to foreclose is

also not futile. While possession of a note bearing a blank endorsement is

sufficient to establish that a plaintiff is the lawful holder of the note and is entitled

to enforce its terms, the Bank still needed to present evidence that it owned and

held the note and mortgage at the time the foreclosure complaint was filed to

establish standing to proceed with the action. Riggs v. Aurora Loan Servs., LLC,

36 So. 3d 932, 933 (Fla. 4th DCA 2010); Mazine, 67 So. 3d at 1131.

      We do not disagree with the cases cited by the dissent, but instead conclude

that they are distinguishable from the case at bar. In Brown v. Montgomery Ward

& Company, the plaintiff sought to amend his complaint two weeks before trial to

raise different issues of liability as grounds for relief. 252 So. 2d 817 (Fla. 1st

DCA 1971).      This court held that it was not an abuse of discretion to deny

creates a condition precedent in foreclosure actions. However, the only issue
addressed here is whether the defense was properly raised in accordance with the
Florida Rules of Civil Procedure. See Deutsche Bank Nat’l Trust Co. v. Quinion,
41 Fla. L. Weekly D177 (Fla. 2d DCA 2016).
                                       7
plaintiff’s motion to amend because it clearly appeared that the amended pleading

“would materially change and introduce into the case new issues.” Id. at 819. In

Levine v. United Companies Life Insurance Company, the supreme court approved

the district court’s holding that the trial court did not abuse its discretion by

denying defendant’s motion to amend two weeks before trial; however, the court

wrote mainly to disapprove the portion of the district court’s opinion that held a

usury savings clause precluded a finding of usury. 659 So. 2d 265, 266-67 (Fla.

1995). Consequently, there was little discussion of the procedural facts and no

discussion of the trial court’s reasoning for denying the motion to amend, making

it difficult to compare Levine to the instant case.

      We note that this foreclosure action has lasted more than six years; however,

we find it significant that most of the delay in this case is attributable to the Bank,

not Appellant. Furthermore, we must also recognize that the purpose of rule 1.190

is “to achieve justice and allow the parties to fully present their respective

positions.” Walker v. Senn, 340 So. 2d 975, 976 (Fla. 1st DCA 1976). Here,

where Appellant’s first attorney never filed an answer on her behalf and

Appellant’s pro se answers did not raise any affirmative defenses, we hold that

under the circumstances of this case, it was an abuse of discretion to deny

Appellant’s motion to amend filed by counsel. Therefore, the final judgment of the




                                           8
trial court is vacated, and the case is remanded with instructions that Appellant be

permitted to file an amended answer.

      REVERSED and REMANDED with instructions.

LEWIS, J., CONCURS; MAKAR, J., DISSENTING.




                                         9
MAKAR, J., dissenting.

      Filed in 2009, this case was initially set for trial in early 2014, but Morgan

fired her attorney just before trial, resulting in delays, a rescheduled trial date, and

the filing of two pro se answers. Thirteen calendar days before the third trial date,

Morgan’s newly-hired attorney sought to file an amended answer, which the trial

court denied. Affirmance is in order; no abuse of discretion is shown. Brown v.

Montgomery Ward & Co., 252 So. 2d 817, 819 (Fla. 1st DCA 1971) (“Under the

circumstances of this case we cannot say that the trial court abused its discretion in

denying appellant the right to file an amended complaint two weeks before the

scheduled trial and after several years of pendency in the court.”); see also Levine

v. United Co. Life Ins. Co., 659 So. 2d 265, 266-67 (Fla. 1995) (affirming denial of

motion to amend answer filed two weeks before trial; holding that trial court “had

not abused its discretion because the liberality typically associated with

amendments to pleadings diminishes as the case progresses”).

      After internal review of the bank’s motion for rehearing en banc, the

majority opinion has been revised to ensure that it is constrained to its facts, so

much so that it falls into a category of cases that are “limited to the present

circumstances” and ought never be cited as precedent. See Bush v. Gore, 531 U.S.

98, 109 (2000); see Chad Flanders, Please Don't Cite This Case! The Precedential

Value of Bush v. Gore, 116 Yale L.J. Pocket Part 141, 144 (2006) (“The Court has

                                          10
so far behaved as if Bush v. Gore does not exist, not yet having cited it (pro or con)

in any case.”). Moreover, it remains an outlier in a sea of contrary caselaw (see

Brown and Levine); absent some future case in this District that happens to be

identical in every respect with this one, trial judges should refer to the bountiful

precedent that appropriately applies principles of deference to their discretionary

decisions whether to grant leave to amend and continue court proceedings.




                                         11
