We view U.S. Bank’s filing of a copy of the note that it later asserted was
the original note as a supplemental exhibit to its complaint to reestablish a lost note as
an attempt to amend its complaint in violation of Florida Rule of Civil Procedure
1.190(a). U.S. Bank did not seek leave of court or the consent of Feltus to amend its
complaint. A pleading filed in violation of rule 1.190(a) is a nullity, and the controversy
should be determined based on the properly filed pleadings. Warner-Lambert Co. v.
Patrick, 428 So. 2d 718 (Fla. 4th DCA 1983).
Before a court may grant summary judgment, the pleadings, depositions,
answers to interrogatories, admissions, and any affidavits must ” ‘conclusively show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.’ ” Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8
So. 3d 1211, 1213 (Fla. 4th DCA 2009) (quoting Fini v. Glascoe, 936 So. 2d 52, 54 (Fla.
4th DCA 2006)). The party moving for summary judgment bears the burden to show
conclusively that there is a complete absence of any genuine issue of material fact. Id.
The properly filed pleadings before the court when it heard the Bank’s
motion for summary judgment were a complaint seeking to reestablish a lost note,
Feltus’s answer and affirmative defenses alleging that the note attached to the
complaint contradicts the allegation of the complaint that U.S. Bank is the owner of the
note, a motion for summary judgment alleging a lost note of which U.S. Bank is the
owner, an affidavit of indebtedness alleging that U.S. Bank was the owner and holder of
the note described in the complaint, and U.S. Bank’s reply to Feltus’s affirmative
defenses asserting that it was now in possession of the original note, which it attached
to the reply. But the note attached to the complaint showed the lender to be
Countrywide Bank, N.A. And the complaint failed to allege that “[t]he person seeking to
enforce the instrument was entitled to enforce the instrument when loss of possession
occurred, or has directly or indirectly acquired ownership of the instrument from a
person who was entitled to enforce the instrument when loss of possession occurred.”
ยง 673.3091(a). In addition, the affidavit of indebtedness revealed no basis for the
affiant’s assertion that U.S. Bank owns and holds the note. The affiant is an assistant
secretary for the alleged servicing agent of the Bank, and she asserted that she had
personal knowledge of the loan based on the loan payment records. She did not assert
any personal knowledge of how U.S. Bank would have come to own or hold the note.
See Shafran v. Parrish, 787 So. 2d 177, 179 (Fla. 2d DCA 2001) (“When affidavits are
filed to establish the factual basis of the motion [for summary judgment], they must be
made on personal knowledge, demonstrate the affiant’s competency to testify, and be
otherwise admissible in evidence.”).
