Cobbum v. CitiMortgage, Inc., ___ So. 3d ___, 40 Fla. L. Weekly D545 (Fla. 2d DCA February 27, 2015)
The borrowers’ answer in a mortgage foreclosure admitted compliance with conditions precedent to filing suit; however, when the lender moved for summary judgment, the buyers filed an affidavit swearing that the lender failed to comply with a condition precedent by not furnishing the notice of default required by paragraph 22 of the mortgage. At the hearing on its motion for summary judgment, the lender argued that the affidavit was insufficient because the borrowers’ answer admitted compliance with conditions precedent. As a result, the borrowers made an oral motion to amend their complaint, but the trial court denied their request, and entered summary judgment for the lender. The appellate court reversed. Leave to amend should be freely granted, particularly before or during the hearing on a motion for summary judgment. The lender would not have been prejudiced by the amendment because the borrowers filed their affidavit three months before the hearing. The borrowers did not abuse the privilege to amend because this was their first request to do so. Amendment would not have been futile because it would have provided the borrowers with a viable affirmative defense. “Although the initial answer generally admitted that all conditions precedent had been met, [the borrower] did not attach to its complaint any documentation of its compliance with paragraph 22 nor did it aver or argue that it had in fact complied with paragraph 22 when the issue was raised [by one of the borrowers]. And an alleged failure to comply with paragraph 22 creates a disputed issue of material fact.”
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