1. The Third DCA recently rendered an opinion wherein it addressed several procedural technicalities seemingly insignificant, but in fact dispositive of significant issues in the foreclosure case. Santos v. HSBC Bank USA, etc., Case No. 3D17-531 (Fla. 3d DCA October 31, 2018). In Santos, the lower court entered final judgment in favor of the bank. Santos, the mortgagor, appealed seeking reversal based on “excusable neglect, improper trial setting, and insufficient evidence of indemnification.” Santos had previously raised those same grounds in a motion to vacate the judgment, but she failed to appeal the order which denied that motion.
  2. The Third DCA noted its review was limited only to “matters determined by the final judgment itself” because Santos only appealed the judgment. For that reason, the Court refused to consider Santos’ excusable neglect argument. Additionally, the Court refused to consider the indemnification argument because Santos failed to provide the court with a copy of the trial transcript. The Court’s discussion regarding whether the case was at issue and properly noticed for trial warrants discussion because it brings to light an unfavorable practice in which many foreclosure attorneys engage. Although the bank replied to Santos’ affirmative defenses and argued they were legally deficient, it did not move to strike the defenses. The Third DCA, citing Fla. R. Civ. P. 1.140(f), explained that “failure to state a legal defense in an answer…must be asserted by motion to strike the defense…”
  3. Usually it is preferable to move to strike legally insufficient affirmative defenses rather than just reply to them. Successfully striking legally insufficient defenses limits the permissible discovery a party can seek expediting the litigation and reducing litigation costs. It also limits the issues which must be proved on summary judgment or at trial. See Stewart v. Gore, 314 So. 2d 10, 12 (Fla. 2d DCA 1975). Further, on appeal, the court’s standard of review in reviewing a decision to strike a defense is whether the lower court abused its discretion. That is a very difficult standard to prove.