Bank of America, National Ass'n v. Asbury
2015 WL 3404042, 165 So. 3d 808, 2015 Fla. App. LEXIS 7959 (2015)
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Rule of Law:
Under Florida Rule of Civil Procedure 1.120(c), a defendant's failure to deny the performance of a condition precedent with specificity and particularity in their pleadings constitutes a waiver of that defense, precluding the defendant from demanding proof of that condition at trial.
Facts:
- Brooke Asbury owned a residential property encumbered by a promissory note and mortgage.
- The mortgage agreement required the lender to send the borrower a default notice prior to initiating a foreclosure action.
- Asbury stopped making payments on her loan.
- As a result of the nonpayment, Bank of America accelerated Asbury's note to begin the foreclosure process.
Procedural Posture:
- Bank of America filed a single-count mortgage foreclosure complaint against Brooke Asbury in a Florida circuit court (trial court) on July 29, 2009.
- The complaint included a general allegation that all conditions precedent to foreclosure had been performed.
- In her answer, Asbury responded to the allegation concerning conditions precedent with 'without knowledge,' which the court treated as a general denial.
- A nonjury trial was held on February 24, 2014.
- On May 8, 2014, the trial court entered a final judgment in favor of Asbury, finding that Bank of America had failed to prove it had mailed the required default letter.
- Bank of America, as the appellant, appealed the final judgment to the Florida Second District Court of Appeal, with Asbury as the appellee.
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Issue:
Does a defendant's general denial of a plaintiff's allegation that all conditions precedent have been met, without specifically identifying the allegedly unfulfilled condition, waive the defendant's right to challenge the plaintiff's compliance with that condition at trial?
Opinions:
Majority - Lucas, Judge.
Yes. A defendant's general denial is insufficient to contest the performance of a condition precedent and results in a waiver of that defense. Florida Rule of Civil Procedure 1.120(c) requires that a denial of the performance or occurrence of a condition precedent 'shall be made specifically and with particularity.' While a plaintiff may aver generally that all conditions have been met, the burden shifts to the defendant to identify any specific condition that was not fulfilled in their pleadings. Asbury's answer of 'without knowledge' was merely a general denial and failed to specify that Bank of America had not mailed the default notice. By failing to do so, Asbury waived the defense and should not have been permitted to challenge it at trial.
Concurring - Silberman, Judge.
Yes. Although I concur with the majority's conclusion that Asbury waived the defense by failing to plead it, I note that the issue may have been tried by implied consent. Bank of America presented evidence to prove it sent the notice, and Asbury challenged it. However, Asbury never made the argument on appeal that the issue was tried by consent, so the waiver stands. The trial court also erred in rejecting testimony as hearsay without an objection. Ultimately, the reversal is correct because Asbury's failure to plead the affirmative defense of noncompliance with a condition precedent is dispositive.
Analysis:
This decision reinforces the strict pleading requirements of Florida Rule of Civil Procedure 1.120(c), clarifying that the burden is squarely on the defendant to identify specific, unfulfilled conditions precedent. It prevents 'trial by ambush' by ensuring that plaintiffs are on notice before trial of the specific conditions they must be prepared to prove. The ruling streamlines litigation by forcing parties to narrow the issues in their initial pleadings, thereby preventing defendants from relying on vague, general denials to later challenge procedural prerequisites to a lawsuit.
