Juana Delacruz, Appellant, v. Wells Fargo Bank, N.A., et al., Appellees.

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Juana Delacruz, Appellant, v. Wells Fargo Bank, N.A., et al., Appellees.

Case No. 5D15–2481

Decided: January 20, 2017

Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellant. Sara F. Holladay–Tobias, Gabriel M. Hartsell and Emily Y. Rottmann, of McGuirewoods, LLP, Jacksonville, for Appellee, Wells Fargo Bank, N.A. No Appearance for Other Appellees.

In this foreclosure case, on the threshold of the scheduled oral argument, Appellee conceded error, based in part on our recently released opinion in Palma v. J.P. Morgan Chase Bank, N.A., No. 5D15–3358, –––S.W.3d ––––, 2016 WL 7176754 (Fla. 5th DCA Dec. 2, 2016). Palma settled the primary issue framed in this appeal—whether Appellant properly pled Appellee's failure to comply with a precondition to acceleration as a defense. Appellant denied with specificity that Appellee had conducted a “face-to-face” interview, as required by the terms of the mortgage, but she did not label this defensive assertion as an “affirmative defense.” The trial court accepted Appellee's argument that the unlabeled defense was not properly pled and deemed it waived. Although Palma settled the largely semantic issue upon which the trial court based its ruling, it failed to emphasize that pleading labels (or lack thereof) seldom control. Work v. Provine, 632 So.2d 1119 (Fla. 1st DCA 1994). Where, as here, the factual basis for the defense provides sufficient notice to apprise the plaintiff of the precise basis for the defense, the failure to affix the correct label is not an impediment to a determination on the merits. Appellee also rightfully concedes that its failure to move into evidence the modification agreement was error on this record.

Accordingly, we reverse and remand the judgment with instructions that the trial court enter an order of involuntary dismissal.



ORFINGER, TORPY, JJ., and THOMPSON, E. R., Senior Judge, concur.

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