Foreclosure Defense Florida

Foreclosure Summary Judgment REVERSED! ONEWEST V. JASINSKI

OneWest Bank, FSB, challenges the trial court’s final summary judgment entered in favor of Kristen M. Jasinski in its foreclosure action against Jasinski.1 Because OneWest Bank presented an affidavit that sufficiently established the existence of a genuine issue of material fact, we conclude that summary judgment was improper and we reverse.2
On November 2, 2005, Jasinski executed a promissory note and mortgage with PrivateBank and Trust Company. The ownership of the note and mortgage changed hands from PrivateBank to IndyMac Bank in February 2006. Jasinski defaulted on the loan in March 2009. After OneWest subsequently acquired the assets of IndyMac, including the servicing rights to Jasinski’s note, it initiated a foreclosure action against Jasinski on July 1, 2009.

In response to the foreclosure complaint, Jasinski filed her answer and affirmative defenses and later moved for summary judgment, arguing that PrivateBank had executed a release of the note on February 7, 2006, and that therefore the note was satisfied and discharged before OneWest acquired it. In defense of summary judgment, OneWest filed the affidavit of a OneWest assistant secretary who averred that Jasinski had continued to remit payments on the loan through March 2009.
At the April 21, 2011, hearing on Jasinski’s summary judgment motion, OneWest argued that Jasinski’s continuing to make payments on the loan after execution of the release was evidence that the debt had not been satisfied. Unswayed by this argument, the trial court granted Jasinski’s motion for summary judgment but in doing so allowed OneWest twenty days in which to file a motion for reconsideration.

OneWest maintained that the affidavit created a genuine issue of material fact as to the validity of the release Jasinski received from PrivateBank.
At a hearing on August 25, 2011, a successor judge granted OneWest’s motion for reconsideration and asked the parties to reset the summary judgment hearing. The court further directed counsel for OneWest to prepare the order. Counsel for OneWest, however, failed to submit a proposed order, and neither party set the summary judgment motion for another hearing. Ultimately, OneWest changed attorneys, and litigation remained pending with little transpiring in the case until October 7, 2013, when Jasinski filed a motion for final judgment based upon the original nonfinal order granting the motion for summary judgment.

A third judge heard this motion and informed the parties that he would only consider the evidence that was in the record as of May 10, 2011, the date OneWest filed its motion for reconsideration. Based on that evidence, the court granted final judgment in Jasinski’s favor, emphasizing that OneWest had failed to comply with the summary judgment order’s directive to, within twenty days, provide sufficient proof of a genuine issue of material fact which would preclude summary judgment. In the written final judgment the trial court determined that Marks’ affidavit was legally insufficient because it contained inadmissible hearsay and did not satisfy the business records

exception of section 90.803(6), Florida Statutes (2010). The court also stated that as an employee of OneWest, Marks was not qualified to testify about the records made by IndyMac.
OneWest argues on appeal that summary judgment was improper because Marks’ affidavit was legally sufficient to be considered by the trial court and established the existence of a genuine issue of material fact as to whether PrivateBank had the authority to execute a release based on the date it sold the note to IndyMac. We agree.
Pursuant to Florida Rule of Civil Procedure 1.510(c), a party is entitled to summary judgment “if the pleadings and summary judgment evidence on file 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.” Subsection (e) of that rule provides that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” With regard to the requirement that the affidavit set forth facts that would be admissible in evidence, [b]usiness records may be admitted under section 90.803(6) if the proponent of the evidence demonstrates the following through a records custodian or other qualified person: (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

By this opinion, we merely conclude that Marks’ affidavit was sufficient for OneWest to survive the motion for summary judgment. When and if this cause proceeds to trial, both parties will have the opportunity to pursue any evidentiary challenges that may lawfully be available to them.

In coming to this conclusion, we further note that “generally the courts hold the moving party for summary judgment or decree to a strict standard and the papers supporting his position are closely scrutinized, while the papers opposing are leniently treated in determining whether the movant has satisfied the burden required of him.” Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955, 958 (Fla. 3d DCA 2010) (quoting Humphrys v. Jarell, 104 So. 2d 404, 410 (Fla. 2d DCA 1958)).
Marks’ affidavit complies with the requirements of rule 1.510(e) and section 90.803(6). Accordingly, the trial court erred in concluding that the affidavit was legally insufficient to be considered at summary judgment and that there remains no genuine issue of material fact as to the validity of the release that Jasinski relied on as the basis for her motion for summary judgment. We therefore reverse the final summary judgment and remand for further proceedings.


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