When a lender files a foreclosure action in Florida, it is required to include a copy of the material portions of the note involved in the foreclosure. Then, that attachment is generally considered part of the pleading itself.
The note, mortgage, and any other important paperwork, such as riders and the property description, are often attached to the pleading as a matter of course to avoid any problems with formal requirements under Florida law. While it is a good practice to attach the complete set of paperwork, lenders may be curious about what will happen if a portion of the paperwork is inadvertently left off of the initial complaint.
Garron v. Buchwald: Missing Paperwork Dismissal
On February 3, 2017, the District Court of Appeal of Florida, Fifth District decided Garron v. Buchwald. It determined what will happen if a lender fails to attach the note, but attaches the mortgage and other paperwork to the complaint.
In that case, the bank filed a foreclosure action with two claims—one based on the note and one based on the mortgage for foreclosure. At first, the lower court determined that the lender’s failure to attach the note prohibited it from asserting that claim at trial. It reached this decision despite the fact that the bank had later attached the missing documentation and the corresponding paperwork reflected the entire agreement based on the note.
Court of Appeal Reversal
The Court of Appeal reversed the dismissal, stating that the other paperwork was more than enough to allow to the court to consider the paperwork that is “material to the pleadings.” The Court noted that the purpose of the rule requiring attached documents was to notify the Defendant about the “nature and extent of the cause of action so that the defendant may plead with greater certainty.”
In Garron, the Defendant knew about the note and could gather the material provisions of the document from the other documents attached to the pleading. This was especially true in Garron because the documents were later filed with the Court. The Court of Appeal reversed the district court and remanded the case to the lower court.