THE BANK OF NEW YORK MELLON, ETC.
v.
MELIDA ABADIA
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A trial court's denial of a motion to dismiss a counterclaim on litigation privilege grounds constitutes irreparable harm as a matter of law, warranting grant of certiorari.
[1] Denial of a motion to dismiss a counterclaim on litigation privilege grounds constitutes irreparable harm as a matter of law, warranting certiorari review and quashing of…
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Join FLexlaw to unlock all legal intelligenceThe Bank of New York Mellon, as trustee for mortgage pass-through certificateholders, filed a foreclosure action against borrower Melida Abadia. Abadi…
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Opinion filed December 23, 2020. Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1611 Lower Tribunal No. 18-41280
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The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificateholders of the CWALT 2006-OA12 Mortgage Pass-Through Certificates, Series 2006-OA12,
Petitioner,
vs.
Melida Abadia,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Spencer Eig, Judge. Polsinelli PC, and Brendan I. Herbert and Henry H. Bolz IV, for petitioner. Jacobs Legal, PLLC, and Bruce Jacobs; and Wasson & Associates, Chartered, and Roy D. Wasson, for respondent. Before FERNANDEZ, HENDON, and LOBREE, JJ. PER CURIAM.
The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificateholders of the CWALT 2006-OA12 Mortgage Pass-Through
Certificates, Series 2006-OA12 (“Trustee”), petitions for a writ of certiorari seeking to quash the trial court’s October 1, 2020 “Order Denying Bank of New York
Mellon, as Trustee’s Motion to Dismiss Counterclaim” and remand for dismissal of
Respondent Melida Abadia’s (“Borrower”), counterclaim below.
Based upon the record before us, the trial court’s denial of the motion to dismiss on litigation privilege grounds constitutes irreparable harm as a matter of law. DelMonico v. Traynor, 116 So. 3d 1205, 1212 (Fla. 2013); AGM Invs., LLC v.
Bus. Law Grp., P.A., 219 So. 3d 920, 924 (Fla. 2d DCA 2017); see Levin,
Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639
So. 2d 606, 608 (Fla. 1994); James v. Leigh, 145 So. 3d 1006 (Fla. 1st DCA 2014);
O’Malley v. St. Thomas Univ., Inc., 599 So. 2d 999 (Fla. 3d DCA1992). We therefore grant the petition for certiorari, quash the order under review, and remand for dismissal of the Borrower’s counterclaim.
Petition for certiorari granted, order quashed, and cause remanded.
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N. Brevard Cnty. Hosp. Dist. v. Deligdish, 398 So. 3d 1126 (Fla. 5th DCA 2024)
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Bank of Am., N.A. v. Lazara A. Rodriguez (Fla. 3d DCA 2022)…iguez’s characterization, the allegations constitute intrinsic fraud. Therefore, “the trial court’s denial of the motion to dismiss on litigation privilege grounds constitutes irreparable harm as a matter of law.” Bank of N.Y. Mellon v. Abadia, 314 So. 3d 595, 596 (Fla. 3d DCA 2020) (citations omitted). 1 Counsel for respondent failed to comply with the September 20, 2021, noon deadline for filing its response, instead filing its response at 6:23 p.m. However, counsel filed a motion to accept th…
Authorities Cited
- Levin v. United States Fire Ins. Co., 639 So. 2d 606 (Fla. 1994)
- Delmonico v. Traynor, 116 So. 3d 1205 (Fla. 2013)
- James v. Leigh, 145 So. 3d 1006 (Fla. 1st DCA 2014)
- AGM Invs., LLC v. Bus. LAW Grp., P.A., 219 So. 3d 920 (Fla. 2d DCA 2017)
- Lovaas v. Lovaas, 599 So. 2d 999 (Fla. 3d DCA 1992)