ANA LOPEZ, APPELLANT,
v.
U.S. BANK, N.A., AS TRUSTEE FOR JP MORGAN MORTGAGE TRUST 2006-A2, APPELLEE
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Ana Lopez appeals a final judgment in a mortgage foreclosure action entered by a trial court that conducted trial before the case was properly "at issue" under Florida Rule of Civil Procedure 1.440. The appellate court reverses, holding that strict compliance with the 20-day waiting period after service of the last pleading is mandatory and reversible error.
A case cannot be tried before it is "at issue" under Rule 1.440. Failure to adhere strictly to the mandates of Rule 1.440 is reversible error, even where both parties agree to proceed to trial.
[1] An action is not at issue until twenty days after service of the last pleading, absent waiver or disposition of motions directed to that pleading.
[2] A trial court commits reversible error by proceeding to trial before an action is at issue under Florida Rule of Civil Procedure 1.440.
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Join FLexlaw to unlock all legal intelligence“Because this case was tried before it was "at issue," in contravention of Florida Rule of Civil Procedure 1.440, we reverse.”
Establishes the basis for reversal—the trial court violated the mandatory procedural requirement that a case be "at issue" before trial.
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Join FLexlaw to unlock all legal intelligenceLopez served her answer and affirmative defenses on January 21, 2013. The trial court set trial for February 8, 2013, without waiting the required 20 …
The full statement of facts, procedural history, and disposition for this case are member content.
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CONFESSION OF ERROR
Ana Lopez (“Lopez”) appeals from a final judgment entered in favor of U.S. Bank, N.A., as Trustee for JP Morgan Chase Mortgage Trust (“U.S.Bank”). Because this case was tried before it was “at issue,” in contravention of Florida Rule of Civil Procedure 1.440, we reverse.
I. FACTUAL AND PROCEDURAL HISTORY
On its own motion, the trial court issued an order setting trial for February 8, 2013. On that date, Lopez’s counsel objected to the case proceeding to trial, arguing that Lopez served her answer and affirmative defenses on January 21, 2013, which was less than the twenty days after service of the last pleading required by Florida Rule of Civil Procedure 1.4401 for an action to be “at issue.” Indeed, the record shows that U.S. Bank’s counsel agreed with Lopez’s counsel on this point, and also brought the matter to the trial court’s attention. Nonetheless, the trial court conducted a trial on that date, and entered final judgment in favor of U.S. Bank.
II. ANALYSIS
On appeal, U.S. Bank properly concedes that the final judgment must be reversed as the case was not “at issue” pursuant to Rule 1.440 until twenty days after service of Lopez’s answer and affirmative defenses. Moreover, U.S. Bank had not waived its right to serve motions directed at Lopez’s answer and affirmative defenses by filing a notice of trial. See Fla. R. Civ. P. 1.440(a).
Because “[fjailure to adhere strictly to the mandates of Rule 1.440 is reversible error,” Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So.2d 1062, 1063 (Fla. 3d DCA 2002), we reverse the final judgment in favor of U.S. Bank and remand for a new trial.
REVERSED AND REMANDED.
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- Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002)