Moving for Summary Judgment Prior to an Answer – A Difficult Burden

Another case in point where a summary judgment entered in favor of a mortgagee was reversed on appeal.  In Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696 (Fla. 4th DCA 2012), a mortgagor appealed from a grant of summary judgment in favor of the mortgagee.  In February 2010, Wells Fargo filed a mortgage foreclosure action against the defendant.  The defendant failed to serve an answer to the complaint.  Wells Fargo, however, did not move for a default.  Instead, in April 2010, Wells Fargo filed a motion for summary judgment, and subsequently filed the original note (endorsed in blank), and an amended affidavit as to amounts due and owing. 

The defendant also filed a motion for summary judgment in November 2010 arguing that the suite should be dismissed because Wells Fargo failed to comply with the pre-suit notice requirement in the acceleration clause of the mortgage.  Defendant did not set his motion for hearing, and in April 2011, he filed an opposition to Plaintiff’s motion, without submitting any supporting affidavits.

The trial court granted Wells Fargo’s motion, and entered a final judgment of mortgage foreclosure.  On appeal, the defendant argues that summary judgment was improper because a genuine issue of material fact existed as to whether Wells Fargo complied with the condition precedent of providing a pre-suit default notice.  In that regard, the mortgage required the lender to give the borrower thirty days’ notice and an opportunity to cure the default prior to filing suit.  The appellate court agreed with the defendant. 

Furthermore, the court noted that when Wells Fargo moved for summary judgment, defendant had not filed an answer and a default had not been entered against him.  A plaintiff who moves for summary judgment before a defendant files an answer has a “difficult burden” in that the plaintiff must not only establish that no genuine issue of material fact exists but that the defendant could not raise any genuine issue of material fact if the defendant were permitted to answer the complaint.  The plaintiff must essentially anticipate the content of the defendant’s answer and establish the record accordingly.  In this case, while Wells Fargo made a general allegation in its complaint that all conditions precedent had occurred, there was no evidence in the record that Wells Fargo complied with the pre-suit notice requirements set forth in the mortgage; Wells Fargo’s affidavit made no mention of the conditions precedent. 

Accordingly, the Fourth District Court of Appeal reversed the final judgment of foreclosure and remanded the case for further proceedings.

The attorneys at Schecter Law bring hard work and insight to your legal dispute, no matter how simple or complex, to avoid or minimize the type of procedural issues highlighted by the above case.  We strategize every case at its inception, and our case strategies are continuously refined and reevaluated at every stage so as to never lose sight of the end goals of our clients. 

In Berkowitz v. Delaire Country Club, Inc., 4D11-3858, 2012 WL 5232251 (Fla. 4th DCA 2012), Stuart Berkowitz (“Berkowitz”), a member of the Delaire Country Club, Inc. (the “Club”), proposed 17 amendments to the Club’s articles of incorporation in a 52-page packet. The Club asked that Berkowitz submit only a single page addressing each proposed amendment because the Club claimed the 52-page packet was too lengthy and difficult to understand. Berkowitz, however, resubmitted much of the same 52-page packet with a color-coded legend separating its materials. The resubmission was rejected because the Club claimed that it was vague, confusing, subject to multiple interpretations and exceeded the single page limit. Berkowitz then filed a complaint seeking declaratory and injunctive relief claiming that the Club failed to follow the required procedure under its articles of incorporation and by-laws. The trial court granted the Club’s motion for summary judgment, which Berkowitz appealed. Florida’s Fourth District Court of Appeal reversed the granting of the motion for summary judgment and remanded the case to the trial court.

The trial court concluded that the failure of the Articles of Incorporation and By-laws to address the scope and format of the materials which a member could submit created a latent ambiguity.  Where a contract is ambiguous, summary judgment is generally improper.  However, if a party moving for summary judgment presents competent evidence, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue, and it is insufficient for the opposing party to merely assert that an issue exists.

In order to resolve the ambiguity, the Club offered purported past submissions by other Club members; no affidavit or other evidence established that the attachments were what they purported to be. The purported past submissions were unauthenticated and were not competent evidence.  Therefore, the purported past submissions could not be used to resolve the latent ambiguity, and it was held that the trial court erred in considering unauthenticated attachments to resolve the contractual ambiguity.

Florida summary judgment procedures are extensive and the skills and expertise of the experienced attorneys at Schecter Law are invaluable regardless of whether you are prosecuting or defending a summary judgment motion.  Call one of our experienced litigators today at (954) 779-7009.