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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

CASE NO: 5D10-2376 L.T. No. 2008-CA-022074 JOHN R. GODSHALK, Appellants, v. COUNTRYWIDE HOME LOANS SERVICING, L.P., Appellee. ______________________________________/

APPELLANTS INITIAL BRIEF

MICHAEL E. RODRIGUEZ, ESQ. Foreclosure Defense Law Firm, PL Florida Bar No: 887900 P. O. Box 75074 Tampa, FL 33675-0074 Office: (813) 287-2625 Fax: (813) 248-3640 Email: attorneymiketpa@aol.com Attorney for Appellant JOHN R. GODSHALK

TABLE OF CONTENTS Page Table of Citations Preface Issue on Appeal Statement of the Case and Facts Summary of Argument Argument 3-4 4 5 5-6 6 7-13

ISSUE ON APPEAL THE FINAL SUMMARY JUDGMENT IS INVALID BECAUSE APPELLEE LENDER HAS NOT MET ITS INITIAL BURDEN OF CONCLUSIVELY SHOWING THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT AND THAT IT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW. Conclusion Certificate of Service Certificate of Font Compliance 13 14 15

TABLE OF CITATIONS Cases Berg v. Bridle Path Homeowners Association 809 So. 2d 32 (Fla. 4th DCA 2002) Bush v. State Farm Fire & Casualty Company, 711 So.2d 68 (Fla. 2nd DCA 1998) Campagna v. Dicus, 606 So.2d 1278 (Fla. 2nd DCA 1992) Coberly v. Thor Industries, Inc., 908 So.2d 486 (Fla. 5th DCA 2005) Easterling v. Keels, 681 So.2d 744 (Fla. 2nd DCA 1996) Fasano v. Henry W. Hicks, P.A., 667 So.2d 1033 Frost v. Regions Bank, 15 So. 3d 905 (Fla 4th DCA 2009) (Fla. 2nd DCA 1996) Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979) Glynn v. Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980) Harrison v. McCourtney, 148 So.2d 53 (Fla. 2nd DCA 1962) Haven Federal Savings & Loan Association v. Kirian 579 So.2d 730 (Fla. 1991) Holl v. Talcott, 191 So.2d 40 (Fla. 1966) Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001) Newton v. Overseas Private Investment Corp., 544 So.2d 224 (Fla. 3rd DCA 1989)
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9, 10 7

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8 7 9

7, 8, 9 7

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Pet Fair, Inc. v. Humane Society of Greater Miami 583 So.2d 407 (Fla. 3rd DCA 1991) Poe v. IMC Phosphates MP, Inc. 885 So.2d 397 (Fla. 2nd DCA 2004) Ruiz v. De Varona, 785 So.2d 508 (Fla. 3rd DCA 2000) Stop & Shoppe Mart, Inc., 854 So.2d 784 (Fla. 5th DCA 2003) Strickland v. Strickland, 456 So.2d 583 (Fla. 2nd DCA 1984) The Key Bank of Florida v. First United Land Title Co., 502 So.2d 1280 (Fla. 2nd DCA 1987) Vivona v. Colony Point 5 Condominium Assn, 706 So.2d 391 (Fla. 4th DCA 1998)

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10 9, 10

7 8, 12

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Florida Rules of Civil Procedure Rule 1.510, Fla.R.Civ.P.

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PREFACE The Appellant JOHN R. GODSHALK is referred to in this APPELLANTS INITIAL BRIEF (this Brief) as Appellant Property Owner. The Appellee, COUNTRYWIDE HOME LOANS SERVICING, L.P., is referred to in this Brief as Appellee Lender. The following symbol will be used in this Brief for the referenced portions of the Record on Appeal: R -- RECORD ON APPEAL. Cite to page numbers.
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ISSUE ON APPEAL THE FINAL SUMMARY JUDGMENT IS INVALID BECAUSE APPELLEE LENDER HAS NOT MET ITS INITIAL BURDEN OF CONCLUSIVELY SHOWING THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT AND THAT IT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW. STATEMENT OF THE CASE AND FACTS The judgment being appealed is a final summary judgment of foreclosure of a mortgage on real property located in Orange County, Florida (R 119-126). Appellant Property Owner was one of the defendants in the case being appealed from (the Case Appealed From). (R1-22). Appellee Lender filed its complaint (the Complaint) against Appellant Property Owner, who was one of the defendants in the Case Appealed From, on September 4, 2008 in the Circuit Court for the Ninth Judicial Circuit in and for Orange County, Florida (the Trial Court) (R 1-22). The Plaintiff filed its motion for summary final judgment of foreclosure (the Motion for Summary Judgment) on February 11, 2009. (R 3336). Appellant Property Owner filed his answer and affirmative defenses to the Complaint on March 9, 2009. (R 37-45). One of these affirmative defenses, Affirmative Defense IV (Affirmative Defense IV), averred, in part, that neither the mortgage in question nor the promissory note in question has been accelerated. (R 39).
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In response to the allegation in paragraph 8 of the Complaint that Plaintiff has complied with all conditions precedent to its right to foreclose (the Conditions Precedent Allegation) (R2), Appellant Property Owner answered Denied. Neither the Plaintiff nor any other person has provided any of the notices required by the document that the Plaintiff purports to be the applicable mortgage in this matter. (R38). The Trial Court granted the Motion for Summary Judgment and issued its SUMMARY FINAL JUDGMENT FOR FORECLOSURE (the Final Summary Judgment) on June 9, 2010, which was filed with the Clerk on June 9, 2010. (R 119-126). Appellant Property Owner filed their NOTICE OF APPEAL on July 9, 2010. (R 145-154). The NOTICE OF APPEAL gave notice of Appellant Property Owners appeal of the Final Summary Judgment. (R 119-126). SUMMARY OF ARGUMENT When the Trial Court granted the Motion for Summary Judgment, Appellee Lender had not met its initial burden of conclusively showing that there were no remaining genuine issues of material fact and that Appellee Lender was entitled to summary judgment as a matter of law. Therefore, the Motion for Summary Judgment should not have been granted, and, as set forth in the CONCLUSION portion of this Brief, the Final Summary Judgment should be reversed.
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ARGUMENT ISSUE ON APPEAL THE FINAL SUMMARY JUDGMENT IS INVALID BECAUSE APPELLEE LENDER HAS NOT MET ITS INITIAL BURDEN OF CONCLUSIVELY SHOWING THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT AND THAT IT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW. (1) A trial courts granting of the Final Summary Judgment is subject to a de novo standard of review. A trial courts granting of summary judgment is subject to a de novo standard of review. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001); and Coberly v. Thor Industries, Inc., 908 So.2d 486, 490 (Fla. 5th DCA 2005). (2) A plaintiff that moves for summary judgment has the initial burden of conclusively showing that there is no genuine issue of material fact and that said plaintiff is entitled judgment as a matter of law. The party that moves for summary judgment is obligated to conclusively show that there is no genuine issue of material fact and that it is entitled, as a matter of law, to a judgment. Fla. R. Civ. P. 1.510; Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966); Glynn v. Kissimmee, 383 So.2d 774,775(Fla. 5th DCA 1980); and Strickland v. Strickland, 456 So.2d 583, 584 (Fla. 2nd DCA 1984). In fact, the Supreme Court of Florida has expressly stated that: (1) the burden of proving the absence of a genuine issue of material fact is upon the moving party; and (2)
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[u]ntil it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried. Holl, 191 So.2d at 43. As such, the movant must first meet its burden of proving a negative, i.e., the non-existence of a genuine issue of material fact and it must prove this negative conclusively. Id. In order to be granted summary judgment, a plaintiff moving party must show that admissible and competent evidence: (A) supports each and every element of its claim; and (B) negates the defenses and claims of the non-moving parties. Glass v. Camera, 369 So.2d 625 (Fla. 1st DCA 1979). Furthermore, the Supreme Court of Florida has held that [a] court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted. Haven Federal Savings & Loan Association v. Kirian, 579 So.2d 730,733 (Fla. 1991). Stated differently, the movant has the burden not only of demonstrating the absence of a genuine issue of material fact as to its own cause of action, but also as to the affirmative defenses set forth in the [non-moving partys] answer. The Key Bank of Florida v. First United Land Title Co., 502 So.2d 1280, 1281 (Fla. 2nd DCA 1987). (3) If a plaintiff moving for summary judgment has not met its initial burden of conclusively showing that there is no genuine issue of material fact and that the plaintiff is entitled judgment as a matter of law, the motion for
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summary judgment must be denied, regardless of whether the nonmoving defendant has filed affidavits or any other papers in opposition to summary judgment. Until the moving party has met its initial burden, any affidavits or other admissible evidence submitted by the non-moving party is irrelevant and need not be considered, as the movants motion must be denied. Holl, 191 So.2d at 43 to 45. A moving party must either disprove the affirmative defenses or show that they are insufficient as a matter of law. Campagna v. Dicus, 606 So.2d 1278 (Fla. 2nd DCA 1992); Newton v. Overseas Private Investment Corp., 544 So.2d 224, 225 (Fla. 3rd DCA 1989); and Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784, 786787 (Fla. 5th DCA 2003). The mere pleading of an affirmative defense by the non-moving party creates a genuine issue of material fact and, in the absence of admissible proof in opposition to that affirmative defense, the non-moving party has no obligation to submit any evidentiary matter or any affidavit. Stop & Shoppe Mart, Inc., 854 So.2d at 787; and Harrison v. McCourtney, 148 So.2d 53, 56 (Fla. 2nd DCA 1962). In the absence of some admissible and competent proof contradicting or opposing an affirmative defense, entry of a summary judgment is improper. Fasano v. Henry W. Hicks, P.A., 667 So.2d 1033 (Fla. 2nd DCA 1996). Therefore, where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the
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complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met. Campagna, 606 So.2d at 1278; and Stop & Shoppe Mart, Inc., 854 So.2d at 786787. (4) It is fundamental error for a trial court to grant summary judgment to a movant plaintiff where the defendant has not met its initial burden ; and an appellate Court must consider and correct fundamental error, even if such error was not raised in the trial court. In a hearing on a motion for summary judgment, a trial court must examine the proffered evidence to be certain that that every element of the pleaded cause of action is established by competent evidence, even where the opponent to summary judgment is not in front of the court, such as in the situation of a default. See Vivona v. Colony Point 5 Condominium Assn, 706 So.2d 391, 392 (Fla. 4th DCA 1998); and Ruiz v. De Varona, 785 So.2d 508, 509 (Fla.3rd DCA 2000). As such, a trial court should not grant summary judgment, even where the nonmoving party has not objected, if the moving party has not met its burden. Furthermore, [w]here a defendant pleads affirmative defenses and the movant-plaintiff does not by affidavit disprove the defenses, or does not establish the legal insufficiency of the defenses, it is fundamental error to enter a summary judgment for the plaintiff. Newton, 544 So.2d at 225. Fundamental error constitutes error that an appellate court is required to notice and correct, even if such error was not raise in the trial
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court. Pet Fair, Inc. v. Humane Society of Greater Miami, 583 So.2d 407, 409 (Fla. 3rd DCA 1991). As such, an appellate court must reverse a final summary judgment granted in favor of a movant plaintiff where the plaintiff: (1) failed to disprove a non-movant defendants affirmative defense by the use of competent, proper and admissible affidavits or evidence; or (2) failed to refute the defendants denial of a material allegation in the complaint, such as a denial or the conditions precedent allegation. (5) A trial courts order granting summary judgment is entitled to the presumption of correctness only if the record supports the ruling. In the context of reviewing a lower courts ruling on a motion for summary judgment, [t]he presumption of correctness generally applicable to all orders subject to appellate review is relatively weak. Poe v. IMC Phosphates MP, Inc., 885 So.2d 397, 400 (Fla. 2nd DCA 2004). In fact, [a] trial courts order granting summary judgment is entitled to the presumption of correctness only if the record supports the ruling. Easterling v. Keels, 681 So.2d 744 (Fla. 2nd DCA 1996) [emphasis added]. (6) The Final Summary Judgment is invalid because Appellee Lender has not met its initial burden of: (1) refuting Appellant Property Owner denial the Conditions Precedent Allegation; and (2) refuting Affirmative Defense IV or showing that the Affirmative Defense IV is legally insufficient.
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None of the documents or materials that were filed before the rendition of the Final Summary Judgment properly addressed or refuted Appellant Property Owners denial of the Conditions Precedent Allegation. Appellant Property Owners denial of the Conditions Precedent Allegation was specific and made with sufficient particularity. See Frost v. Regions Bank, 15 So. 3d 905 (Fla 4th DCA 2009). As such, Appellee Lender had the burden of negating Appellant Property Owners denial of the Conditions Precedent Allegation. See Berg v. Bridle Path Homeowners Association, 809 So. 2d 32, 34(Fla. 4th DCA 2002)(While Rule 1.120 relaxes certain pleading requirements, it does not relieve the plaintiff from having to prove every element of its entitlement to a judgment against the defendant once the defendant makes a specific denial of a particular element of the claim.); and The Key Bank of Florida, 502 So. 2d at 1281(A movant for summary judgment has the burden of demonstrating the absence of a genuine issue of a material fact as to its own cause of action). In addition, none of the documents or materials that were filed before the rendition of the Final Summary Judgment refuted Affirmative Defense IV or showed that Affirmative Defense IV was legally insufficient. See Frost, 15 So. 3d at 905, 907. During the hearing on the Motion for Summary Judgment, Appellee Lender did attempt to present a copy of a purported notice of default letter to the Trial
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Court. (See hearing transcript, R 175). However, Appellant Property Owner objected to the introduction or use of the copy of the purported notice of default letter. (See hearing transcript, R 175). In addition, the copy of the purported notice of default letter was never filed or served and never become part of the Final Summary Judgment record. As such, because Appellee Lender failed to demonstrate the absence of a genuine issue of a material fact as to its own cause of action and failed to factually refute Affirmative Defense IV or show that it was legally insufficient, the Final Summary Judgment must be reversed even though the Appellants did not file an affidavit in opposition to the Motion for Summary Judgment.

CONCLUSION The strict procedural requirements for summary judgment motions are designed to protect a litigants constitutional right to a trial on the merits of a particular claim. Bush v. State Farm Fire & Casualty Company, 711 So.2d 68 (Fla. 2nd DCA 1998). Appellee Lender was not entitled to the expedited path of summary judgment when it failed to carry its initial burden. Therefore, Appellant Property Owner asks this Court to reverse the Final Summary Judgment.

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/s/ Michael E. Rodriguez_______ MICHAEL E. RODRIGUEZ, ESQ. Foreclosure Defense Law Firm, PL Florida Bar No: 887900 P. O. Box 75074 Tampa, FL 33675-0074 Office: (813) 287-2625 Fax: (813) 248-3640 Email: attorneymiketpa@aol.com Attorney for Appellant JOHN R. GODSHALK

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served on this 25th day of February 2011 by United States Postal Service, First Class Mail, postage prepaid to the following: (1) Sean K. Mills, Esquire, Butler & Hosch, P.A., 3185 South Conway Road, Suite E, Orlando, FL 32812; (2) Mirabella at La Vina Homeowners Association, Inc., Boyle Mgmt. Services, Inc., 498 Palm Springs Dr., Altamonte Springs, FL 32701; and (3) Unknown Tenant I and Unknown Tenant II, 9450 Candice Ct. Orlando, FL 32832. /s/ Michael E. Rodriguez_______ MICHAEL E. RODRIGUEZ, ESQ. Foreclosure Defense Law Firm, PL Florida Bar No: 887900 P. O. Box 75074 Tampa, FL 33675-0074 Office: (813) 287-2625 Fax: (813) 248-3640 Email: attorneymiketpa@aol.com Attorney for Appellant JOHN R. GODSHALK
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CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that Appellants Initial Brief complies with the font requirements of Fla.R.App.P. 9.210(a)(2).

/s/ Michael E. Rodriguez_______ MICHAEL E. RODRIGUEZ, ESQ. Foreclosure Defense Law Firm, PL Florida Bar No: 887900 P. O. Box 75074 Tampa, FL 33675-0074 Office: (813) 287-2625 Fax: (813) 248-3640 Email: attorneymiketpa@aol.com Attorney for Appellant JOHN R. GODSHALK

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