Two Great Rulings, One Great Appellate Court. Why, it’s as if the appellate judges sitting on this bench have all decided:
“We’re going to apply the Rule of Law. Evenly. Fairly. With due regard for the interests of all parties. We’re not going to excuse improper business practices and we’re not going to invent law just because a mighty industry chose to ignore long existing laws and rules.”
And so from on high, the court spoke and it said:
We conclude that this case was not at issue when summary judgment was
entered. The Zervases had not filed an answer and a default had not been entered
against them. “[I]f ‘a plaintiff moves for summary judgment before the defendant has
filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no
answer which the defendant might properly serve could present a genuine issue of
fact.” ‘ ” Howell v. Ed Bebb, Inc., 35 So. 3d 167, 168-69 (Fla. 2d DCA 2010)
Although Wells Fargo made the general allegation in its complaint that
“[a]ll conditions precedent to the filing of this action have been met by Plaintiff,” there is
no evidence in the record that Wells Fargo complied with paragraph twenty-two. Similar
to Goncharuk, 62 So. 3d at 682, Wells Fargo did not establish that the record would
have no genuine issue of material fact where it did not address the notice of
acceleration in the motion for summary judgment or accompanying affidavits. See also
Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011); Sandoro v.
HSBC Bank, 55 So. 3d 730, 732 (Fla. 2d DCA 2011).
We also note that the mortgage and note attached to the complaint show
the lender to be Fremont Investment and Loan. On April 1, 2010, approximately six
months after the complaint was filed, Wells Fargo filed a lost note affidavit, which
alleged that the note was lost by its attorney sometime after the attorney received it on
November 2, 2009. In their motion to dismiss, the Zervases alleged, among other
grounds, that Wells Fargo did not have standing to bring the foreclosure complaint
because it did not have a written assignment of the loan. Then on July 26, 2010, seven
days before the hearing on the motion for summary judgment, Wells Fargo filed the note
as a supplemental exhibit to its complaint. The note contains an endorsement in blank,
but there is no evidence in the record establishing that the endorsement in blank was
made to Wells Fargo prior to the filing of the foreclosure complaint. See Feltus v. U.S.
Bank Nat’l Ass’n, 80 So. 3d 375, 377 n.2 (Fla. 2d DCA 2012) (holding that bank was
required “to prove the endorsement in blank was effectuated before the lawsuit was
filed”).
And then the court, surveying the work that was presented before them again consulted their books and their precedents, they ruminated and thought. In and among the elevated chambers of higher thought and reason, they debated among themselves. Considerate both of the moment in history and of the trajectory of this nation, the jurists spoke again.
This time a non-lawyer had the temerity and faith in the system of laws and judges in this country to petition the higher court directly. This man apparently still had faith that his nation’s courts would stand with him and protect against the abuses and the violations of the far more powerful foes. In the Second Circuit of Florida, David can indeed square off against Goliath and really have a chance to stand tall on his feet. And so with this in mind, the judges from on high spoke and said:
Jorge Cerron, pro se, appeals a final summary judgment of foreclosure on
a mortgage in favor of GMAC Mortgage, LLC, the successor to the original lender. We
reverse because GMAC failed to refute Cerron’s affirmative defense alleging lack of
notice.
GMAC filed a complaint seeking to foreclose a mortgage given by Cerron,
and it alleged generally that all conditions precedent to acceleration had been
performed or had occurred. The complaint attached a copy of the mortgage, paragraph
22 of which required the lender to give thirty days’ written notice of default prior to
acceleration. Cerron filed a pro se answer, which was not a model pleading. The
answer set forth several pages of narrative in opposition to the foreclosure complaint
and then alleged four affirmative defenses. The first affirmative defense asserted that
GMAC failed to give timely notice of default and of the lender’s intent to accelerate as
required by the mortgage, note, and Florida law. Cerron’s answer included a plea for
the court to dismiss the action.
GMAC subsequently filed a motion for summary judgment and asserted,
in part, that Cerron’s affirmative defenses were legally insufficient. In support of its
motion, GMAC filed an affidavit setting forth the amounts due and owing and an affidavit
regarding attorney’s fees and costs. It subsequently filed a notarized, recorded
document recounting that the mortgage had been assigned to GMAC on a date just
prior to the filing of the complaint. GMAC also filed the note that was indorsed in blank.
None of GMAC’s filings specifically addressed or refuted Cerron’s affirmative defenses.
The circuit court denied Cerron’s motion to dismiss and directed him to file
an amended answer, which he did. In the amended answer, Cerron specifically alleged
as his seventh affirmative defense that GMAC failed to give a notice of default and that
it thus failed to comply with a contractual condition precedent. GMAC filed updated
affidavits of amounts due and attorney’s fees, but it never addressed Cerron’s
affirmative defenses, either by affidavit or by memorandum in support of summary
judgment.
On appeal, Cerron argues that the circuit court erred in granting summary
judgment when GMAC failed to refute his affirmative defenses. Based on our de novo
review of the summary judgment, we agree. See Taylor v. Bayview Loan Servicing,
LLC, 74 So. 3d 1115, 1117 (Fla. 2d DCA 2011) (“The standard of review on a summary
judgment is de novo.”). The party moving for summary judgment must show that there
are no disputed issues of material fact and that it is entitled to judgment as a matter of
law. Id. at 1116-17 (citing Fla. R. Civ. P. 1.150(c)). In addition, a plaintiff moving for
summary judgment must refute the nonmoving party’s affirmative defenses. Id.; see
also Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251, 253 (Fla. 2d DCA2011).
On appeal, GMAC maintains that Cerron had the burden to file an affidavit
stating that he never received a notice of default, at which point GMAC would have
been required to refute the contention with contrary evidence. That is incorrect. A
plaintiff moving for summary judgment must either conclusively refute the factual bases
for the defendant’s affirmative defenses or show that the defenses are legally
insufficient. Coral Wood Page, 71 So. 3d at 253. As in Taylor and Konsulian v. Busey
Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011), when Cerron alleged GMAC’s failure to
provide a contractually required notice of default, GMAC’s burden on summary
judgment was to show that it had satisfied this condition precedent. It failed to do so.
