Is this Attorneys Missed Appearance Excused or Unexcused in the Eyes of the Court?

Posted on July 28, 2017

In the present case of Deutsche Bank Trust Co. Americas for RALI 2005QA8 v. Maas, No. 2D15-898, 2017 WL 2989016 (2nd DCA. July 14, 2017). Deutsche Bank Trust Company Americas appeals a final order involving dismissing its foreclosure complaint against Becki and Ryan Maas on the grounds that the Bank’s attorney failed to appear at a hearing.

The involuntary dismissal was based on a technical admission resulting from the Bank’s failure to timely respond to requests for admissions. The Bank followed Florida Rules of Civil Procedure 1,370(b), which required the Bank to file a verified motion seeking relief from the admissions and schedule the matter for hearing.  The Bank’s attorney who was scheduled to call into the meeting, did not call, but the court reporter that was hired by the Bank did appear. The trial court asked how the Maas’ counsel wanted to proceed, in which they responded by asking the court to dismiss the motion without giving the Bank an opportunity to be heard on its motion.  The court obliged, and it denied the motion.

Once the Bank received the order denying its motion based on failure to appear, the Bank promptly moved for reconsideration based on excusable neglect.  Its motion was supported by an affidavit explaining her failure to appear was due to an error in her departments scheduling abilities. She had notified her scheduler that she was sick and not to schedule her for any meetings, but was never informed by her scheduler that she was assigned to cover the meeting. The trial court denied the motion for reconsideration saying the affidavit was inadequate to show excusable neglect.  At trial, the court refused to grant relief from the admissions, and refused to allow the Bank to provide evidence. The Maas’ counsel was granted an involuntary dismissal.

The trial court erred on two matters. First, it should have granted the Bank’s motion for reconsideration. The Bank provided a sworn affidavit establishing that its attorney’s failure to appear was inadvertent. In the past, this type of excuse has usually been found to be cause for excusable neglect. Additionally, the trial court abused its discretion when it refused the Bank’s request for relief from the technical admissions.  Florida courts have a longstanding preference in which this court and others have repeatedly held that relief from technical admissions should be liberally granted. The Bank’s technical admissions were contradicted by evidence in the record, and the Maas’ did not demonstrate any prejudice to their ability to defend the foreclosure action.  See Fla. R. Civ. P. 1.370(b) (“[T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be sub served by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits.”).  Accordingly, the Bank should have been granted relief from the admissions. 


Therefore, the appellate court reversed the order dismissing the Bank’s complaint and remanded for further proceedings consistent with this opinion.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

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 gmednick@mednicklawgroup.com.

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