Second Responsive Pleading Allowed in Foreclosure Case where Court Unnecessarily Granted Leave

Posted on October 24, 2016

In Pers. v. Bank of N.Y. Mellon Trust Co., No. 4D15-3036, 2016 WL 6092105, a (Fla. Dist. Ct. App. Oct. 19, 2016) Shirley Hill Person brought an appeal against The Bank of New York Mellon Trust Company, N.A., as Trustee on behalf of CWABS Asset- Backed Certificates Trust. This appeal follows a bench trial in which the banks foreclosure was litigated for claims of illegal consumer debt collection.

 Appellant filed a pro se answer and affirmative defenses but did not assert any counterclaims against the Bank. After plaintiff filed a responsive pleading, plaintiff also moved for a motion to dismiss. The court denied this motion, and granted Appellant twenty days to file a new responsive pleading. This order was entered into regardless of the fact that plaintiff had already filed an answer. Subsequently, Appellant filed a supplementary responsive pleading and this time included counterclaims for illegal consumer debt collection.  The court entered into an order against appellant’s second responsive pleading striking the pleading. The Court reasoned that the Appellant’s first answer and affirmative defenses stood. The case proceeded to trial. This appeal follows after the Court entered into judgment in favor of the Bank at trial. 

Appellant maintains that at trial the Court improperly struck her counterclaims because the order the Court entered into in which they denied her motion to dismiss, resulted in appellant being granted leave to file a new complaint. The District Court of Appeals agrees with Appellant’s appeal because Appellant was correctly granted the right to file another responsive pleading regardless of how unnecessary it was for the trial court to grant this leave.

The District Court of Appeals reverses the order striking Appellant’s counterclaims and remands for reinstatement. The counterclaims can be tried separately as they seek affirmative relief independent of the foreclosure issue. The District Court expressly states that in reversing and remanding for reinstatement, they do not input on the validity of the counterclaims.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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