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Bank is not required to file a reply to affirmative defenses when statute of limitations is pled as a defense when the complaint alleges a continuous state of default. On July 20, 2018, the Fifth District Court of Appeal held in U.S. Bank Nat’l Assoc. v. Wilson, Case No. 5D17-2130, 43 Fla. L. Weekly D1631a, (Fla. 5th DCA July 2018), held that “a reply to an affirmative defense is required only to allege new facts which may be sufficient to avoid the legal effect of the facts contained in the affirmative defense. If the Plaintiff does not reply, the affirmative defenses are deemed denied and therefore false.” citing Roman v. Bogle, 113 So. 3d 1011, 1014 (Fla. 5th DCA 2013), rev. denied 130 So. 3d 691 (Fla. 2013); see also Fla. R. Civ. P. 1.110(e) (an averment in a pleading “to which no responsive pleading is required or permitted shall be taken as denied or avoided”). Accordingly, as the Bank’s complaint alleged a continuous state of default, the Fifth District Court of Appeal held that the Bank was not required to file a reply because no additional facts were necessary to address the statute of limitations defense, and the defense was thus denied.
Res Judicata/Statute of Limitations:
If the Complaint alleges a new and subsequent default after the dismissal of the two prior cases that have been dismissed voluntary, there is no res judicata. On July 20, 2018, the Fifth District Court of Appeal held in Deutsche Bank Nat’l Trust Co., v. Forester, Case No. 5D17-1811, 43 Fla. L. Weekly D1632a, (Fla. 5thDCA July 20, 2018 held “while the Bank alleged some defaults in its most recent complaint that were dismissed in prior actions, it is also alleged new and different defaults that occurred after the two prior dismissals. As each subsequent default accuring after the dismissal of an earlier action creates a new cause of action, the trial courts dismissal based on res judicata is reversed and remanded.”
There is no time limitation for filing a motion for relief from a judgment which alleges that the judgment is void under Fla. R. Civ. Pro. 1.540(b)(4).
On July 20, 2018, the Second District Court of Appeal held in Shah v. Regions Bank, Case No. 2D17-1225, 43 Fla. L. Weekly D1635a, (Fla. 2d July 20, 2018) that, “while it is true that Fla. R. Civ. Pro. 1.540(b)(4) states that a motion for relief from a void judgment must be filed within a reasonable time, there is no limitation on setting aside a void judgment.” citing M.L. Builders, Inc., v. Reserve Developers, LLP, 769 So. 2d 1079, 1082 (Fla. 4th DCA 2000); Wiggins v. Tigrent, Inc., 147 So. 3d 76, 81 (Fla. 2d DCA 2014).
New Demand Letter Case.
Testimony regarding a company's routine business practices may establish a rebuttable presumption that the default letter was mailed. But the witness must have personal knowledge of the company's general mailing practice -- meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company's routine practice for mailing letters.
On Friday, July 13, 2018, the Second District Court of Appeal in Soule v. U.S. Bank Nat’l Assoc., Case No. 2D16-3231, 43 Fla. L. Weekly D1590f, (Fla. 2d July 13, 2018), reversed the final judgment entered in favor of the Bank, and remanded for an involuntary dismissal. In reaching this ruling, the Second District Court of Appeal held that the Bank was the successor servicer and had not prepared or mailed the default letter, and that the witness worked for the Bank and had no personal knowledge of the mailing practices of the predecessor servicer. Without the testimony based on such personal knowledge, the Bank’s only competent evidence was that the default letter had been prepared, not that it had been mailed.
Loan Modification Agreement is not a negotiable instrument and a duplicate, if properly authenticated is admissible.
On July 5, 2018, the Third District Court of Appeal in Bank of New York Mellon v. Garcia, Case No, 3D17-2041, 43 Fla. L. Weekly D1534b (Fla. 3d DCA July 5, 2018) held that “a loan modification agreement is not a negotiable instrument and a duplicate, if properly authenticated, is admissible to the same extent as the original and without need for an explanation as to why the original was unavailable.” citing Liukkonen v. Bayview Loan Servicing, 43 Fla. L. Weekly, D663 *2 (Fla. 4th DCA March 28, 2018). The background of this case is that at trial the Bank sought to introduce a duplicate of the loan modification executed by the parties, and Garcia objected asserting that under the Best Evidence Rule (Fla. Stat. 90.252) that an original was required. Garcia further argued that Fla. Stat. 90.953 was inapplicable because the loan modification agreement is a negotiable instrument. The trial court sustained the objection and denied admission of the loan modification agreement duplicate. When Garcia moved for an involuntary dismissal, the trial court granted same based on the failure to introduce the original loan modification agreement and that the initial default alleged in the Complaint was more than five years old.
The Third District Court of Appeal held that the trial court erred in entering a final judgment of dismissal in favor of Garcia. As a loan modification is not a negotiable instrument, and as the subject Complaint pled the initial default and all subsequent payments. Accordingly, the final judgment is reversed and remanded for a new trial.
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