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Turning The Cases Upon Their Head

Just about a month ago the Third District Court of Appeal came out with an opinion that stood for the premise that where a Bank failed to respond to Requests for Admission propounded by a Defendant, they should not be penalized.

Puzzling isn’t even the word. The fact is that Florida Rule of Civil Procedure Provides the following language:

(a) Request for Admission ... The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request. (b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.

See Wells Fargo Bank, N.A. v. Donaldson, No. 3D14-1730, 2015 WL 2089099, at *2 (Fla. 3d DCA 2015).

The fact is that the court found that a “dismissal based solely on the failure to timely answer a request for admissions would be inappropriate when the pleadings make clear the opposing party's position and the existence of disputed facts.”

See again Donaldson, (Fla. 3d DCA 2015).

At first blush the opinion would be disheartening. The opinion might even lead one to scream “injustice!” from the rooftops, since it would appear that the principles of rule and law have taken a back seat to what some would assign to merely a pro-Bank agenda. However, that is NOT a proper assessment. One thing for sure, the opinion challenges the very bed rock of civil practice in the State, the Florida Rules of Civil Procedure and decade’s worth of case-law. At Loan Lawyer though we don’t examine cases for how they destroy our clients, because well quite frankly every case lately can do that, rather we dissect cases to see how we can use a bad opinion in a strategically good way. What’s good for goose must be good for the gander as well.

Donaldson in my opinion provides my clients, or those considering retaining Loan Lawyers in the future, a way to recover where procedurally they had a few hiccups. Where a solid pleading has made clear that the allegations are denied, it is my opinion that no matter which side of the “v” you find yourself, your case is still viable, and you still can continue to fight for your rights in a debt action.

Make an appointment today so we can discuss.

Categories: Foreclosure Defense
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