Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003). · Go Syfert
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Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003). Cases Citing This Book View Copy Cite
“the provides a mechanism for the domestication of a 'foreign judgment' through its filing in the office of any circuit-court clerk in alabama.”
23 citation events (23 in the last 25 years) across 5 distinct courts.
Strongest positive: Evans v. Anderson (alacivapp, 2015-03-06)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 16 distinct citers.
discussed Cited as authority (verbatim quote) Evans v. Anderson
Ala. Civ. App. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
the provides a mechanism for the domestication of a 'foreign judgment' through its filing in the office of any circuit-court clerk in alabama.
discussed Cited as authority (verbatim quote) Collins v. Countrywide Home Loans, Inc. (2×) also: Cited as authority (rule)
M.D. Fla. · 2010 · quote attribution · 1 verbatim quote · confidence high
had to know his own financial capacity better than a stranger
cited Cited as authority (rule) PLASTIQUIM, S.A. v. ODEBRECHT CONSTRUCTION, INC.
Fla. Dist. Ct. App. · 2022 · confidence medium
Thompson v. Bank of N.Y., 862 So. 2d 768, 770 (Fla. 4th DCA 2003).
discussed Cited as authority (rule) Linda G. Morgan v. The Bank of New York Mellon etc. (2×)
Fla. Dist. Ct. App. · 2016 · confidence medium
Courts have held that proposed amendments are futile when they are not pled with sufficient particularity or are “insufficient as a matter of law.” Thompson v. Bank of N.Y., 862 So. 2d 768, 770 (Fla. 4th DCA 2003).
discussed Cited as authority (rule) Linda G. Morgan v. The Bank of New York Mellon etc.
Fla. Dist. Ct. App. · 2016 · confidence medium
Courts have held that proposed amendments are futile when they are not pled with sufficient particularity or are “insufficient as a matter of law.” Thompson v. Bank of N.Y., 862 So. 2d 768, 770 (Fla. 4th DCA 2003).
discussed Cited as authority (rule) The Marquesa at Pembroke Pines Condominium Association, Inc. v. Chris Powell
Fla. Dist. Ct. App. · 2016 · confidence medium
In Quality Roof Services, Inc. v. Intervest National Bank, 21 So.3d 883 (Fla. 4th DCA 2009), this Court held that “[a] court ‘should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.’ ” Id. at 885 (quoting Thompson v. Bank of N.Y., 862 So.2d 768, 770 (Fla. 4th DCA 2003)).
cited Cited as authority (rule) In re Standard Jury Instructions—Contract & Business Cases
Fla. · 2013 · confidence medium
Thompson v. Bank of New York, 862 So.2d 768, 769 (Fla. 4th DCA 2003); Carefree Vills.
discussed Cited as authority (rule) Hutson v. Plantation Open MRI, LLC
Fla. Dist. Ct. App. · 2011 · confidence medium
In addition, courts “should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 883, 885 (Fla. 4th DCA 2009) (quoting Thompson v. Bank of New York, 862 So.2d 768, 770 (Fla. 4th DCA 2003)) (emphasis added). “[R]efusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Spradley v. Stick, 622 So.…
discussed Cited as authority (rule) Armiger v. Associated Outdoor Clubs, Inc.
Fla. Dist. Ct. App. · 2010 · confidence medium
“A proposed amendment is futile if it is insufficiently pled, [Thompson v. Bank of N.Y., 862 So.2d 768, 770 (Fla. 4th DCA 2008) ], or is ‘insufficient as a matter of law.’ ” Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 888, 885 (Fla. 4th DCA 2009) (quoting Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir.1999)).
discussed Cited as authority (rule) Quality Roof Services, Inc. v. Intervest National Bank
Fla. Dist. Ct. App. · 2009 · confidence medium
Florida Rule of Civil Procedure 1.190(e) states that “[a]t any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading.” A court “should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” Thompson v. Bank of Neiv York, 862 So.2d 768, 770 (Fla. 4th DCA 2003) (citation omitted); see also Montero v. Compugraphic Coup., 531 So.2d 1034, 1036 (Fla. 3d DCA 1988).
discussed Cited as authority (rule) Grills v. Philip Morris USA, Inc.
M.D. Fla. · 2009 · confidence medium
Florida state law also requires a complaint to plead fraud “with particularity.” See Thompson v. Bank of N.Y., 862 So.2d 768, 771 (Fla.Dist.Ct.App.2003) (per curiam) (explaining Cady v. Chevy Chase Sav. & Loan, Inc., 528 So.2d 136, 138 (Fla.Dist.Ct.App.1988) (per curiam)). 25 .
discussed Cited as authority (rule) Alicia Whitehurst v. Wal-Mart Super Center
11th Cir. · 2008 · confidence medium
The fraud claims were not pled with particularity, as required by Federal Rule of Civil Procedure 9(b), Next Century Communications Corp. v. Ellis, 318 F.3d 1023 , 1027-28 n. 1 (11th Cir.2003) (indicating that a plaintiff must satisfy Rule 9(b)’s pleading requirements in diversity fraud action), as well as Florida law, see, e.g., Thompson v. Bank of New York, 862 So.2d 768, 770 (Fla. 4th Dist.Ct.App.2003) (collecting cases). 5 Moreover, with respect to their negligence claims, neither of the Whitehursts is alleged to have suffered a cognizable injury.
discussed Cited as authority (rule) Blue Supply Corp. v. Novos Electro Mechanical, Inc.
Fla. Dist. Ct. App. · 2008 · confidence medium
The instant complaint, instead of alleging with particularity the factual basis for the claims at issue, muddied the waters with a blatantly faulty allegation. 2 See Thompson v. Bank of N.Y., 862 So.2d 768, 769 (Fla. 4th DCA 2003) (concluding that debtor’s allegations of fraud were not pled with sufficient particularity, and thus, debtor was not entitled to amend his answer in foreclosure action, to assert the affirmative defense of fraud; the allegations were conclusory in their content and lacking in any real allegations of ultimate fact showing fraud on the part of creditor); Hembd v. Dau…
discussed Cited as authority (rule) Blue Supply Corp. v. Novos Electro Mech., Inc.
Fla. Dist. Ct. App. · 2008 · confidence medium
The instant complaint, instead of alleging with particularity the factual basis for the claims at issue, muddied the waters with a blatantly faulty allegation. [2] See *1160 Thompson v. Bank of N.Y., 862 So.2d 768, 769 (Fla. 4th DCA 2003) (concluding that debtor's allegations of fraud were not pled with sufficient particularity, and thus, debtor was not entitled to amend his answer in foreclosure action, to assert the affirmative defense of fraud; the allegations were conclusory in their content and lacking in any real allegations of ultimate fact showing fraud on the part of creditor); Hembd …
discussed Cited "see" David Azar v. National City Bank
11th Cir. · 2010 · signal: see · confidence high
See Thompson v. Bank of New York, 862 So.2d 768, 770-771 (Fla.Dist.Ct.App.2003) (per curiam) (explaining that whether a borrower could afford a loan was an opinion involving more facts available to the borrower than the seller).
discussed Cited "see, e.g." Grove Isle Ass'n v. Grove Isle Associates, LLLP
Fla. Dist. Ct. App. · 2014 · signal: see also · confidence medium
Nat’l Bank of Miami, 472 So.2d 817, 818 (Fla. 3d DCA 1985); see also Thompson v. Bank of N.Y., 862 So.2d 768, 770 (Fla. 4th DCA 2003) (quoting N. Am.
Ronald THOMPSON, Appellant,
v.
The BANK OF NEW YORK, as Trustee, Appellee.
4D01-3281.
District Court of Appeal of Florida, Fourth District.
Nov 5, 2003.
862 So. 2d 768
Per Curiam.
Cited by 18 opinions  |  Published

[*769] Alan H. Ramer, Miami, for appellant.

William P. Heller of Akerman Senterfitt, Fort Lauderdale, for appellee.

PER CURIAM.

This is an appeal from a final summary judgment of foreclosure. The trial court granted summary judgment without allowing the defendant to file amended affirmative defenses. Because the proposed amendment failed to state the defense of fraud with particularity, we affirm the final judgment.

The Bank of New York, appellee, filed an amended foreclosure complaint on June 20, 2000. On July 5, 2000, appellant, Ronald Thompson, filed an answer, without affirmative defenses, and a counterclaim alleging a Federal Truth In Lending violation. On August 31, 2000, the Bank moved to dismiss the counterclaim, arguing, inter alia, that it was subject to mandatory arbitration pursuant to an arbitration agreement signed by Thompson.

On February 22, 2001, the Bank moved for summary judgment on its foreclosure claim.

On March 24, 2001, Thompson moved for leave to file an amended answer and counterclaim; the proposed pleading contained the affirmative defense that the "subject matter of this action was procured by fraud." The counterclaim contained counts for fraud and deceptive trade practices under section 501.204, Florida Statutes (1999).

On the eve of the summary judgment hearing, Thompson filed an affidavit that the signature on the arbitration agreement was not his. The court scheduled an evidentiary hearing to determine whether Thompson signed the arbitration agreement.

At the May 24, 2001 evidentiary hearing, Thompson admitted that the signature on the arbitration agreement was his. The court ordered the parties to file memoranda addressing the enforceability of the arbitration agreement.

On July 24, 2001, in a well-reasoned ten-page order, the trial court granted the Bank's motion for summary judgment and denied Thompson's motion to file an amended answer and counterclaim. The court indicated that Thompson could pursue his counterclaim in arbitration. The court determined that sanctions were appropriate because Thompson and his counsel "knew or should have known" that the claim that Thompson did not sign the arbitration agreement was unsupported by the facts.

The trial court did not abuse its discretion in denying the motion to amend to add the affirmative defense of fraud, since the defense was not pled with sufficient particularity. Without the affirmative defense, nothing in the record precluded summary judgment of foreclosure.

Florida Rule of Civil Procedure 1.190(a) provides that leave of court to[*770] amend a pleading "shall be given freely when justice so requires." "Courts should be especially liberal when leave to amend `is sought at or before a hearing on a motion for summary judgment.'" Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991) (quoting Montero v. Compugraphic Corp., 531 So.2d 1034, 1036 (Fla. 3d DCA 1988)). "As a general rule, `[l]eave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.'" N. Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359, 362 (Fla. 4th DCA 1999) (quoting Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996)); see also Kiriakidis v. Kiriakidis, 855 So.2d 208 (Fla. 4th DCA 2003).

However, a proposed amendment is futile where it is insufficiently pled. The court in this case denied the motion to amend because Thompson's allegations of fraud were "conclusory in their content, and lacking in any real allegations of ultimate fact showing fraud on the part of the Bank of New York." Such defenses were insufficient as a matter of law.

Because of litigants' proclivity to loosely sling the term "fraud" into pleadings, the law requires that fraud be described with precision. Florida Rule of Civil Procedure 1.120(b) mandates that "the circumstances constituting fraud ... shall be stated with such particularity as the circumstances may permit."

This means that an affirmative defense or claim "must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions." Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). Where a defense of fraud exists, "it is not so subtle a concept that it cannot be described with precision." Id.

The only specific allegation of fraud in the affirmative defense is that the seller of the underlying real estate represented to Thompson that Thompson was "financially able to qualify and afford the subject premises."

Such a statement cannot support a cause of action for fraud. See, e.g., Glass v. Craig, 83 Fla. 408, 91 So. 332, 335 (1922) (holding that "a mere statement of opinion, belief, or expectation, although untrue and resting upon no information, is not such a false representation as to constitute fraud"); Reimsnyder v. Southtrust Bank, N.A., 846 So.2d 1264, 1266 (Fla. 4th DCA 2003) (determining that statements made by bank officer were either not demonstrably false or were mere opinion and thereby not actionable under a fraud claim); Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168, 172 (Fla. 4th DCA 1994) (finding that a claim for fraudulent misrepresentation is not actionable if premised on mere opinion and not material fact); Baker v. United Servs. Auto. Ass'n, 661 So.2d 128, 131 (Fla. 1st DCA 1995) (reasoning that for a claim of misrepresentation to be actionable, it must be of fact rather than opinion); Wasser v. Sasoni, 652 So.2d 411, 412 (Fla. 3d DCA 1995) (finding that seller's statements that the building was "a very good building" requiring "normal type of maintenance," and "an excellent deal," were clearly statements of opinion and not fraudulent misrepresentations); Carefree Vills. Inc. v. Keating Props., Inc., 489 So.2d 99, 102 (Fla. 2d DCA 1986) (finding that a seller's statement that he thought the lifetime leases could be broken was nothing more than an opinion, upon which no action for misrepresentation could be grounded).

Whether Thompson was financially able to qualify for the loan was a matter of[*771] opinion. Whether Thompson could afford the loan was an opinion involving facts more available to Thompson than to the seller; Thompson had to know his own financial capacity better than a stranger. The trial court was correct that Thompson failed to set forth a defense of fraud.

This case is similar to Cady v. Chevy Chase Savings & Loan, Inc., 528 So.2d 136 (Fla. 4th DCA 1988). In Cady, the borrower attempted to raise fraud as an affirmative defense to a mortgage foreclosure. We held that the borrower had failed to plead fraud "with particularity as is required," so that it was insufficient as a matter of law. Id. at 138. We wrote that "[c]ertainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient." Id. We affirmed the summary judgment of foreclosure in Cady. In this case, the defense of fraud fails for the same reason that it did in Cady.

For these reasons, we affirm the final judgment without prejudice to Thompson pursuing his claims in arbitration. We do not reach the propriety of the award of attorney's fees, because the trial court has not entered a final judgment setting an amount.

AFFIRMED.

STONE, GROSS, JJ., and STERN, KENNETH D., Associate Judge, concur.