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. In Santos the mortgagor executed a note and mortgage in 2005 and defaulted in 2009. The bank filed a foreclosure complaint naming Santos as a defendant in 2015. Santos answered the complaint and asserted several affirmative defenses. The bank replied to Santos’ affirmative defenses but did not move to strike them. The lower court set the matter for a February 2017 non-jury trial and entered judgment in favor of the bank when Santos and her attorney failed to appear for the trial.

Santos moved to vacate the judgment on the grounds of “excusable neglect, improper trial setting, and insufficient evidence of indemnification.” However, prior to having the motion to vacate heard by the lower court, Santos appealed the final judgment thereby divesting the lower court of jurisdiction to rule on the motion to vacate. Upon Santos’ request, the Third DCA relinquished jurisdiction and the lower court heard and denied Santos’ motion to vacate. Santos failed to amend her notice of appeal to include the court’s denial of her motion to vacate or to otherwise appeal that order.

The Third DCA reasserted its jurisdiction and proceeded with the appeal of the final judgment. In her brief, Santos argued the final judgment should have been vacated “because her counsel’s failure to appear for trial was due to excusable neglect,…the case was not properly scheduled for trial because it was not at issue…” and the bank failed to present sufficient evidence “to support the final judgment’s finding on indemnification.”

The Third DCA affirmed the final judgment. Firstly, the Court explained since Santos failed to appeal the order denying her motion to vacate, the court lacked jurisdiction to consider any of the grounds raised in support of that motion, including her counsel’s excusable neglect. The Court noted its review on appeal was limited only to “matters determined by the final judgment itself.” As to the indemnification argument, the court found Santos’ failure to provide a transcript of the trial proceedings precluded appellate review of that issue.  

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…” Ultimately in Santos, the lack of an unresolved motion to strike rendered the case “at issue” for purpose of trial and formed the basis for affirming judgment in favor of the bank. However, this result should not be misinterpreted to mean it is best to reply to rather than strike legally deficient affirmative defenses.

This is clearly demonstrated in several cases, but most blatantly in a decision rendered many years ago by the Fourth DCA in Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co. In Bay Colony the Court explained:

The trial court may not on its own initiative strike an affirmative defense for the reason that it is legally insufficient; in that case a motion by a party is required.”

The only basis that a court can strike an affirmative defense is if it finds the defense “redundant, immaterial, impertinent, or scandalous.” If a pled defense is legally insufficient, a party must move to strike it.

Successfully striking legally insufficient defenses has many benefits. It 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. (“Since the appellant asserted affirmative defenses, for appellees to obtain a summary judgment it was incumbent upon them to establish the non-existence of any genuine issue of any material fact by either disproving or establishing the legal insufficiency of the appellant’s affirmative defenses.”)

Also, from an appellate perspective, the appeal of an order striking a party’s affirmative defenses is reviewed for an abuse of discretion. That is a very difficult standard to prove because the appellant must demonstrate “no reasonable man would take the view adopted by the lower court.” Canakaris v. Canakaris. Compare that to the appeal of a summary judgment where the appellate court can review the matter “de novo” which is the broadest standard of review for an appellate court. For these reasons, it is clear the best practice is to move to strike legally insufficient affirmative defenses as early in the case as possible.