When you study foreclosure cases, the term “summary judgment” comes up quite regularly. Summary judgment is a means of skipping the formality (and time, expense, etc.) of a trial. It is appropriate when there is no material issue of act in dispute. That make sense, right? When there’s no essential fact in dispute between the parties, that will generally mean the parties acknowledge that the plaintiff is entitled to the relief requested.
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It also makes logical sense that summary judgment would be often granted in foreclosure cases. After all, the defendant borrowers are typically in foreclosure because they are not paying their mortgage payments. They are aware that the house can be taken away for such behavior. They are not paying out of choice (well, most commonly at least.) Rather, they don’t have the money to pay.
Accordingly most foreclosure cases are resolved at a summary judgment hearing. What, you might ask, happens when a borrower files affirmative defenses? Must there be a hearing on those defenses? May the lender get summary judgment?
The issue was recently covered by the 4th DCA in West Palm Beach. In this case, Wells Fargo filed a foreclosure action against the Woodrums. The Woodrums failed to answer the complaint. Wells, instead of motioning for a default judgment, motioned for summary judgment. Faythe Woodrum then filed a motion in opposition to Wells’ motion and in so doing, stated several affirmative defenses. At the hearing on Wells’ motion for summary judgment, the Court granted Well’s motion.
The Woodrums appeal and the 4th reverses. In its opinion, the 4th cites Miles v. Robinson in stating, “If a plaintiff moves for summary judgment prior to the defendant’s filing an answer, she must conclusively demonstrate that the defendant cannot assert a genuine issue of material fact. Although Wells argued where an answer is overdue, affirmative defenses raised in an affidavit opposing the motion for summary judgment cannot be considered by the trial court. The 4th was unconvinced and noted that Wells provided no law in support of its legal contention. Rather, the 4th noted that Florida Rule of Civil Procedure 1.510(c) allows the court to consider affidavits when determining whether a genuine issue of material fact exists. Additionally, a party may plead or defend at any time before a default is entered per Fla. R. Civ. P. 1.500(c).
The 4th concluded that because the bank failed to refute the Woodrums’ affirmative defenses or show that they were legally insufficient, it was error for the trial court to grant summary judgment.