Spencer v. EMC – Because of the stumbling, bumbling, and general ineptitude of the mortgagee and its representatives, the appellant has managed to remain in the mortgaged premises without payment for over fifteen years after defaulting in 1997.

Because of the stumbling, bumbling, and general ineptitude of the
mortgagee and its representatives, the appellant has managed to remain in the
mortgaged premises without payment for over fifteen years after defaulting in
1997. While it therefore pains me deeply to do so, I concur in the reversal5 of the
summary judgment of foreclosure against her. I do so for two reasons:
I.
I agree that the action should have been dismissed for lack of prosecution
under Florida Rule of Civil Procedure 1.420(e). There is no doubt that the plaintiff
took none of the steps required to avert dismissal under the rule.6 Its argument that
denial of dismissal was appropriate under Deutsche Bank National Trust Co. v.
Basanta, 36 Fla. L. Weekly D2324b (Fla. 3d DCA 2011), because the notice was
not properly ” served” on the plaintiff as the rule provides, is, I think, incorrect. It
is undisputed that the plaintiff had actual knowledge of the notice within the sixty-
day period and, nevertheless, failed to demonstrate either activity or the good cause
In the first incarnation, this passage read ” I feel that I must dissent from the
affirmance. . . .” See De Leon v. Great Am. Assurance Co., 78 So. 3d 585, 586 n.1
(Fla. 3d DCA 2011).
6
The present action is the second attempt to foreclose the mortgage. The first case
was in fact dismissed for lack of prosecution. (This case demonstrates the exquisite
accuracy of the acronym [f]or [l]ack [o]f [p]rosecution.)
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for its absence required to avert dismissal. (It is admitted that no such activity or
cause was ever demonstrated because they did not exist.)
involving a situation in which, unlike this one, the plaintiff had no knowledge at all
of the order in question. It accordingly does not control here. Therefore, we are
required to resolve the issue which was not presented in Basanta, and which was
mooted in Boosinger v. Davis, 46 So. 3d 152 (Fla. 2d DCA 2010). (” This case
does not involve a situation in which the parties or their attorney had actual notice
of the filings within the sixty-day period.”) Boosinger, 46 So. 3d at 154 n.2. With
the court, I see no reason why the failure to properly serve something on someone
who already knows of the document’s existence should relieve that individual of
the consequences which would inevitably flow from his failure to establish, at any
time or in any way, that he was entitled to relief. See Grainger v. Wald, 29 So. 3d
1155 (Fla. 3d DCA 2010) (holding service of notice to creditors upon creditor’s
personal injury attorney instead of probate attorney was effective insofar as
creditor had actual notice of limitations period for filing claim); Dep’t of Highway
Safety & Motor Vehicles v. Nikollaj, 780 So. 2d 943 (Fla. 5th DCA 2001) (holding
actual notice of reason for driver’s license suspension satisfies statutory notice
requirement); Phoenix Ins. Co. v. McCormick, 542 So. 2d 1040 (Fla. 2d DCA
1989) (holding insurer’s service of written notice of coverage defense substantially
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complied with statutory notice requirement despite failure to serve notice by
registered or certified mail).
II.
Even if this were not so, the summary judgment should not be affirmed. Far
from establishing the right to that relief beyond genuine issue on the statute of
limitations defense, City of Brooksville v. Hernando County, 424 So. 2d 846 (Fla.
5th DCA 1982); Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981), the
record contains unrebutted affirmative evidence from the plaintiff’s representative
that a prior owner of the mortgage had appropriately accelerated it, thus triggering
the limitations period under section 95.11(2)(c), Florida Statutes (2012), well more
than five years before the commencement of this action. See Greene v. Bursey,
733 So. 2d 1111 (Fla. 4th DCA 1999); Monte v. Tipton, 612 So. 2d 714 (Fla. 2d
DCA 1993); Locke v. State Farm Fire & Cas. Co., 509 So. 2d 1375 (Fla. 1st DCA
1987). If anything, only the appellant was entitled to judgment on this record.
As someone ““ probably either St. Thomas More or George Costanza ““ must
have said, the law is the law. Notwithstanding the distasteful consequences of
applying it in this case, it must be served.
SPENCER