Florida Appellate Courts Continue The Clean-Up; Another Lower Court Error In Rubber-Stamped Foreclosure Case Caught, Booted Back

Confronted with another screw-up by a state trial judge (this time, it was Charlotte County Circuit Judge Lee A. Schreiber) presiding over a home foreclosure action, a Florida appeals court once again found itself compelled to find error and kick the case back to the lower court for further proceedings.

Among the highlights here were:

• a lender's attorney filing a motion for summary judgment prior to the homeowner filing an answer to the complaint,
• the homeowner/couple withdrawing a motion to dismiss the day before the hearing and then filing an answer to the complaint, containing several common defenses, including a claim that the foreclosing entity had not provided the notice of acceleration that the standard language in the mortgage requires it to provide,
• the trial court improvidently entering a summary judgment against the homeowner/couple even though nothing in the record refuted the homeowners' claim that they had not received the notice of acceleration.(1)

For the ruling, see Goncharuk v. HSBC Mortgage Services, Inc., 2D10-2629 (Fla. 2d DCA, May 20, 2011).

Representing the homeowner was Gregg Horowitz, Sarasota, Florida.

(1) The 3-judge appellate panel addressed this issue in the following excerpt (bold text is my emphasis):

• Vasiliy and Marina Goncharuk appeal a final judgment of foreclosure entered after the trial court granted a motion for summary judgment in favor of HSBC Mortgage Services, Inc. We reverse. The procedural posture of this case and the disputed issue of fact that requires reversal of the summary judgment appear to be virtually identical to those in Sandoro v. HSBC Bank, USA National Ass'n, 55 So.3d 730 (Fla. 2d DCA 2011).

***

• HSBC Mortgage seems to believe that the Goncharuks did something improper by waiting until the day before the hearing to withdraw their motion to dismiss and file an answer. At least in this context, we are aware of no rule of procedure that would prevent the Goncharuks from taking this step. Given that the answer contains no unusual defenses, nothing suggests that this step was taken for any improper purpose.
  
  As we explained in Sandoro and in several earlier cases, a plaintiff who moves for summary judgment before a defendant files an answer has a difficult burden.
  
  When a plaintiff moves for summary judgment before the defendant answers the complaint, the plaintiff "must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint."
  
  Sandoro, 55 So. 3d at 732 (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010)). See also Howell v. Ed Bebb, Inc., 35 So.3d 167, 168 (Fla. 2d DCA 2010); Brakefield v. CIT Group/Consumer Fin., Inc., 787 So.2d 115, 116 (Fla. 2d DCA 2001).
  
  The plaintiff must essentially anticipate the content of the defendant's answer and establish that the record would have no genuine issue of material fact even if the answer were already on file. In Sandoro, the lender failed to address the notice of acceleration in its motion for summary judgment and accompanying affidavits. 55 So. 3d at 731-32. HSBC Mortgage failed to address the same issue in this case; therefore, we must reverse the final judgment of foreclosure and remand for further proceedings.
  
  Reversed and remanded.