Summary Judgement Should Rarely Be Entered in a Florida Foreclosure Case

When Should A Judge Enter Summary Judgment in Foreclosure?   Almost Never.

Across the State of Florida, millions of homeowners are losing their homes in foreclosure.   That’s bad enough.   What makes it worse is in the vast majority of cases the lenders do not actually meet their burden to prove the foreclosure case, but judges sign orders of Summary Judgment and the sales are set based upon their orders.   Exact figures are hard to come by, but I’ve heard it estimated that something like 70% of foreclosure cases go undefended with not so much as a single paper filed by the homeowner.   When this occurs and a default is entered, courts routinely enter summary judgment without much of an examination of the file. While this practice might be technically correct, courts should be sufficiently concerned about the poor pleading, fraudulent affidavits and other problems that have become commonplace in this foreclosure crisis such that the courts should have second thoughts about granting summary judgment in any case.

Florida Rule of Civil Procedure 1.510(c) sets the criteria for the filing of a motion for summary judgment:

(C) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least 20 days before the time fixed for the hearing. The adverse party may serve opposing affidavits by mailing the affidavits at least 5 days prior to the day of the hearing, or by delivering the affidavits to the movant’s attorney no later than 5:00 p.m. two business days prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

A sampling of direct quotes from appellate court decisions on the summary judgment standard is as follows:

• Even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.

• The rule simply is that the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.

• Thus, if the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.

• We likewise must emphasize that contrary to the assertions of the trial court,each and every Florida district court of appeal has concurred with our holding that the merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.  

For more information or the exact cites for each of these cases, please contact my office.   The bottom line is the poor behavior of the lending and banking industry, along with the questionable tactics and behavior from Plaintiffs attorneys should give any court reasonable doubt that should prevent that court from entering summary judgment in the vast majority of cases.