Bringing down the house of cards

one Pro Se at a time.

Useful Case Laws

WarnerLambert Co. v. Patrick (Fla. 4th DCA 1983).

A pleading filed in violation of rule 1.190(a) is a nullity, and the controversy should be determined based on the properly filed pleadings.  WarnerLambert Co. v. Patrick, 428 So. 2d 718 (Fla. 4th DCA 1983).

Booker v. Sarasota Inc (1st DCA 1998)

Because Sarasota, Inc. failed to establish its status as legal owner and holder of the note, or to establish the assignment from the FDIC, the trial court acted prematurely in basing its ruling on D'Oench.

Family Bank v. Able Realty of America (Fla. 4th DCA 1998)

Court in its discretion may refuse to grant prayer for foreclosure of mortgage for equitable reasons...mortgage foreclosure is an equitable action and thus equitable defenses are appropriate.

U.S. v. Federal National Mortgage Association (Fla. 4th DCA 1978)

Failure to comply with the notice requirement contained in the federal regulation is a valid defense to a mortgage foreclosure action.

Talarowski v. The Pennsylvania Railroad Company, 135 F. Supp. 503 (D. Del. 1955)

A motion to strike an affirmative defense will be denied if the defense is sufficient as a matter

of law, or if it fairly presents a question of law or fact which the court ought to hear.

Kidder & Co. v. Turner (Fla. 1958)

A motion to strike a defense should not be granted where the defense presents a bona fide question of fact.

Rodriquez v. State (Fla. 3d DCA 1983) Fla. R. Civ. P. 1.140(b)

The lack of subject matter jurisdiction may properly be raised for the first time at the appellate stage.

WRJ DEVELOPMENT, INC. v. NORTH RING LIMITED, (Fla. 3rd DCA 2008)

The case law is well established that, in an action to enforce a promissory note, the documentary taxes must be paid in order for the note to be enforceable in court.

Morrison v. US. Bank N.A (Fla. 5th DCA 2011)

Evidence that notice of default was sent is prerequisite to summary judgment.

Sobel v. Mutual Development, Inc., 313 So. 2d 77 (Fla. App. 1st Dist. 1975)

A mortgage is a mere incident of, and ancillary to, the note or other obligation secured thereby, and an assignment of the pledge of the mortgage without an assignment of the pledge of the note or obligation secured thereby creates no right in the assignee or pledgee

Schneider v. Currey, 584 So.2d 86 (Fla. 2d DCA 1991)

A trial court, as well as this court, is also precluded from considering as fact unproven statements documented only by an attorney.

Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982)

"If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.")

DiSarrio v. Mills, 711 So.2d 1355 (Fla. 2d DCA 1998)

Unsworn argument by counsel simply “is not evidence.”

Tunnell v. Hicks, 574 So.2d 264, 266 (Fla. 1st DCA 1991)

A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive.

Sarkis Konsulian v. Busey Bank (Fla. 2d DCA 2011)

Because Busey did not prove that it met the conditions precedent to filing for foreclosure, it failed to meet its burden, and it is not entitled to judgment as a matter of law.

Moroni v. Household Fin. Corp. III, 903 So. 2d 311, 312 (Fla. 2d DCA 2005)

A summary judgment must not only establish that no genuine issues of material fact exist as to the parties’ claims, but it also must either factually refute the affirmative defenses or establish that they are legally insufficient.

Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2d. DCA 1992)

Crosby v. Paxson Elec. Co., 534 So. 2d 787 (Fla. 1st DCA 1988)

Topping v. Hotel George V, 268 So. 2d 388 (Fla. 2d DCA 1972)

Affidavit based on hearsay is not sufficient to support summary judgment.

CSX Transportation, Inc., v. Pasco County, 660 So. 2d 757 (Fla. 2nd DCA 1995)

We reverse because there are material issues of fact in dispute, making summary judgment inappropriate.

The initial burden is on the movant to demonstrate the nonexistence of any material fact. If genuine issues of fact exist, these issues may not be resolved in the summary proceeding.

Mutual of Omaha Ins. Co. v. Eakins, 337 So 2d 418 (Fla. 2d DCA 1976)

CSX argues Balwin's affidavit does not comply with the requirement of Fla. R. Civ. P. 1.510(e), which requires that an affidavit be made on personal knowledge of the affiant and affirmatively show the affiant is competent to testify to the matters in the affidavit.

Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979)

In an adversary proceeding such as this the determination of an attorney's fee for the mortgagee based upon affidavits over objection of the mortgagor is improper. Evidence should be adduced so that the full range of cross examination will be afforded both parties. Demoso v. Demaso, 345 So. 2d 391 (Fla. 3rd DCA 1977); Thoni v. Thoni, 179 So 2d 420 (Fla. 3rd DCA 1965); Mullane v. Lorenz, 372 So. 2d 168 (Fla. 4th DCA 1979)

Soundcrafters, Inc., v. Laird, 467 So. 2d 480 (Fla. 5th DCA 1985)

We conclude that the trial court erred in permitting Laird's sole expert to testify by way of affidavit over Soundcrafters objection. Soundcrafters was deprived of any opportunity to cross-examine the expert as the the basis for his opinion...

Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786, 788 (Fla. 4th DCA 1995)

Before plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.

Wright v. Blocker, 144 Fla. 428, 198 So. 88 (1940);

Poladian v. Johnson, 85 So.2d 140 (Fla. 1955)

Recordation of an invalid instrument affords no protection to claimants thereunder.

Vance v. Fields, 172 So. 2d 613, 614 (Fla. 1st DCA 1965)

An assignment of the mortgage without an assignment of the debt creates no right in the assignee.

Waite v. Wellington Boats, Inc. 459 So. 2d. 431 (Fla. 1st DCA 1984)

Torrey v. Leesburg Regional Medical Center, 731 So. 2d 748 (Fla. 5th DCA 1999)

The court may strike any pleading not signed by the party's attorney of record.

Khan v. Bank of America (Fla: Dist. Court of Appeals, 5th Dist. 2011)

While Bank of America alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the amended complaint contradicts that allegation. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.

David J. Sandoro v. HSBC Bank USA N.A (Fla. 2nd DCA 2011)

Here, the record reflected genuine issues of material fact regarding the purported assignment of mortgage and whether Mr. Sandoro had been provided with a notice of acceleration. Therefore, the trial court erred in granting HSBC Bank's motion for summary judgment and we reverse and remand for further proceedings.

JAMES KWONG and LIFEN LI KWONG, v. COUNTRYWIDE HOME LOANS SERVICING, L.P. et al., 36 Fla. L. Weekly D251a (Fla. 4th DCA Feb. 2, 2011)

In this case, the defendants moved to quash service of process because the process servicer failed to note the time of service on the papers served.  The trial court denied the motion.  The appellate court reversed, holding that "strict compliance with statutory requirements of service is mandated."

Francel v. Gries Investment Fund, LLC (Case No. 2D09-4591)

Francel argues, and we agree, that the trial court erred in granting summary judgment because Gries never factually refuted these affirmative defenses or established that they were legally insufficient. Consequently, Gries did not establish its entitlement to summary judgment. See, e.g., Morroni v. Household Fin. Corp., III, 903 So. 2d 311 (Fla. 2d DCA 2005) (explaining that a party seeking summary judgment must either factually refute the other party's affirmative defenses or establish that they are legally insufficient); Manassas Inv., Inc. v. O'Hanrahan, 817 So. 2d 1080 (Fla. 2d DCA 2002) (holding that in order for the movant to prevail on a summary judgment motion, the movant must either factually refute the affirmative defenses or establish that they are legally insufficient). In evaluating the sufficiency of Francel's affirmative defenses, the trial court should have considered Francel's affidavit and accompanying documents which alleged facts in support of his affirmative defenses. See Fla. R. Civ. P. 1.510(c). Accordingly, we reverse the trial court's order of summary judgment and remand for further proceedings.

Household Finance Corporation v. Henry Fred Mitchell (1D10-0304)

The trial court erred in denying HFC’s motion to vacate the default. We conclude that HFC raised at least one meritorious defense in its answer and affirmative defenses.

A party moving to set aside a default must show that the failure to file a timely responsive pleading was due to excusable neglect, that there is a meritorious defense to the claim, and that the request for relief from default was made with reasonable diligence after it was discovered. See Hunt Exterminating Co., Inc. v. Crum, 598 So. 2d 113 (Fla. 2d DCA 1992); Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995); Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304 (Fla. 4th DCA 2010). The court must deny the motion if any one of the three elements is not established.

Ballinger v. Bay Gulf Credit Union (2D09-4561)

The Second District reversed a final judgment based upon the contents of the verified complaint.  Interestingly, the court found "no error in two of the issues raised by" the appellant.  However, concluded that "we must reverse because the verified complaint was insufficiently pleaded and, therefore, final summary judgment was improvidently entered."

Palacio v. Alaska Seaboard Partners Limited Partnership (1D10-2690)

First District reversed the trial court's order denying a motion to set aside judgment and remanded the case so that the trial court can conduct an evidentiary hearing.

Insurance Company of North America v. Noya, 398 So. 2d 836 (Fla. 5th DCA 1981)

Gosman v. Luzinski, 937 So. 2d 293 (Fla. 4th DCA 2006)

Plaintiff failed to timely apply for any protective order and thus waived all objections, exepting any claims of priviledge [in discovery]. Plaintiff has failed to file any priviledge log. Thus, Plaintiff has waived any and all objections to the discovery propounded by Defendant.

Alvarez v. COOPER TIRE & RUBBER COMPANY, Fla: Dist. Court of Appeals, 4th Dist. 2010

The Fourth District reversed the trial court's judgment entered after a jury verdict and remanded for a new trial because the plaintiff was not allowed to conduct sufficient discovery

Gables Club Marina, LLC v. Gables Condominium and Club Ass'n, Inc, 948 So. 2d 21,24 (Fla. 3d DCA 2006)

Trial court did not abuse its discretion by setting aside default judgment in part based on allegations that defaulting  party relied on representation that lawsuit would not proceed while settlement discussions remained viable and where Association responded within five days to motion for default).

Seal v. Brown, 801 So. 2d 993, 994-95 (Fla. 1st DCA 2001)

Jorge Palacia v. Citifinancial Equity Services (Fla. 1st DCA 2010)

Schuman v. International Consumer Corporation (4D09-951)

"A trial court is required to conduct an evidentiary hearing before entering an order denying a motion to set aside a judgment."   "Furthermore, if a moving party's allegations raise a colorable entitlement to relief, a formal evidentiary hearing and appropriate discovery is required."

Steven Ray Opella v. Bayview Loan Servicing LLC

M.L. Builders, Inc. v. Reserve Developers LLP (FLA. 4th DCA 2000)

Kenney v. Richmond (Fla 4th DCA 1987)

"A judgment entered without service of process is void and will be set aside and stricken from the record on motion at any time."

Servedio v. US Bank N.A (4D10-1898)

The summary judgment order should be reversed because the lender did not file “a copy of the original note and mortgage prior to the entry of judgment the original mortgage note with the trial court.”

Even  if  the  trial  court  considered  the  note  and mortgage  at  the hearing,  the documents were not authenticated,  filed, and served more than twenty days before  the hearing as  required by Rules 1.510(c) and 1.510(e).   Appellee’s  failure  to  abide  by  these  rules  also  necessitates reversing  the order granting summary  judgment.   Verizzo, 28 So. 3d at 977-78; Mack v. Commercial Indus. Park,  Inc., 541 So. 2d 800  (Fla. 4th DCA 1989).

State Street Bank and Trust v. Lord, 851 So. 2d 790 (Fla 4d DCA 2003)

To maintain a mortgage foreclosure, the plaintiff must either present the original promissory note or give a satisfactory explanation for its failure to do so. § 90.953(1), Fla. Stat. (2002); W.H. Downing v. First Nat'l Bank of Lake City, 81 So.2d 486 (Fla.1955); Nat'l Loan Investors, L.P. v. Joymar Assocs., 767 So.2d 549, 551 (Fla. 3d DCA 2000).

Johnston v. Hudlett, 32 So. 3d 700 (Fla 4d DCA 2010)

Moreover, in the case of original mortgages and promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. See Perry v. Fairbanks Capital Corp., 888 So.2d 725, 726 (Fla. 5th DCA 2004). The judgment cancels the note. The clerk cannot return these instruments to the parties.

Desert Ranches of Florida v. Bowman, 340 So.2d 1232 (Fla 4d DCA 1976)

Only an entire action may be voluntarily dismissed under Fla.R.Civ.P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all causes of action.

This means that plaintiff cannot drop lost note count from the complaint.

Fuchs v. Fuchs, 840 So. 2d 449 (Fla. 4th DCA 2003):

Finding trial court erred in ruling on matters concerning child custody and child support during hearing noticed for husband’s motion for temporary financial relief;

Fickle v. Adkins, 394 So. 2d 461 (Fla. 3d DCA 1981):

Finding court violated appellant’s due process rights when it disposed of all pending matters, including matters that were not noticed for hearing.

Bobby E. Williams vs. Cal Henderson, Sheriff of Hillsborough County, Florida, 779 So.2d 450(2000)

Since the trial court granted the motion for summary judgment and entered its final judgment of forfeiture based solely on the detective's incompetent and insufficient affidavit, we must conclude that the trial court entered summary judgment without the benefit of any facts. Accordingly, summary judgment was improper.

Restatement (3d) of Property (Mortgages) § 5.4

[a] mortgage may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation that the mortgage secures.

Kelley v. Upshaw, 39 Cal. 2d 179, 192, 246 P.2d 23 (1952)

Assigning only the deed without a transfer of the promissory note is completely ineffective.

In re Leisure Time Sports, Inc. 194 B.R. 859, 861 (9th Cir. 1996)

"[a] security interest cannot exist, much less be transferred, independent from the obligation which it secures" and that, "[i]f the debt is not transferred, neither is the security interest".

Carpenter v. Longan, 83 U.S. 271, 274, 21 L. Ed. 313 (1872)

However, for there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned. "[t]he note and mortgage are inseparable; the former as essential, the latter as an incident"; adding that "[a]n assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity".

Mitchell  Brothers, Inc. v. Westfield Insurance Company, Fla: Dist. Court of Appeal, 1st Dist. 2009

The affidavit and attached list of payments is insufficient to award summary judgment as they constitute

hearsay.

Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998)

The trial court, when considering a motion for summary judgment in an action on a promissory note, was not permitted to simply assume that the plaintiff was the holder of the note in the absence of record evidence of such.

BAC Funding Consortium Inc. ISAOA/ATIMA v. U.S Bank NA, (Fla. 2nd DCA 2010)

Final Summary Judgement is improper plaintiff failed to establish its status as legal owner and holder of the note and mortgage.

Mortgage Electronic Registration v. Azize, 965 So. 2d 151 - Fla: Dist. Court of Appeal, 2nd Dist. 2007

PHILOGENE v. ABN AMRO MORTG. GROUP INC., 948 So. 2d 45 - Fla: Dist. Court of Appeal, 4th Dist.

The holder of a note has standing to seek enforcement of the note.

Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399 - Fla: Dist. Court of Appeal, 2nd Dist. 2000

When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.

Settecasi v. Board of Public Instruction, 156 So. 2d 652 - Fla: Dist. Court of Appeal, 2nd Dist. 1963

When a plaintiff moves for summary judgment before the defendant has filed an answer, "the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact."

Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000)

When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint

Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008)

Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.

Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971)

When there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable.

Bernstein v. New Beginnings Trustee, LLC, 988 So.2d 90 (Fla. 4th DCA 2008)

“‘[T]he burden is upon the party moving for summary judgment to show conclusively the

complete absence of any genuine issue of material fact.’ Fini, 936 So. 2d at 54 (quoting

Albelo v. S. Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996)). A trial court may enter

summary judgment only when there are no genuine issues of material fact conclusively

shown from the record and the movant is entitled to judgment as a matter of law. See Albelo,

p.1129.”

Manning v Clark, 71 So.2d 507 (Fla.1954), Williams v. City of Lake City, 62 So.2d 732 (Fla.1953)

Courts sparingly grant summary judgment to avoid infringing on the constitutional right to

trial. If fact issues exist and the slightest doubt remains, the Court must resolve the doubt in

favor of the non-movant and deny summary judgment.

Carpenter v. Longan, 83 US 271 - Supreme Court 1873

The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.

Babe Elias Builders, Inc. v. Pernick,765 So. 2d 119, 119 (Fla. 3d DCA 2000)

“[A] trial court has the inherent power to impose sanctions on a party who destroys evidence or perpetrates a fraud on the court.” Babe Elias Builders, Inc. v. Pernick, 765 So. 2d 119, 119 (Fla. 3d DCA 2000); see also Amato v. Intindola, 854 So. 2d 812, 815 (Fla. 4th DCA 2003); and Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998).

McKnight v. Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005)

“The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.”

Savino v. Fla. Drive In Theatre Mgmt., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997)

Where a trial court determines that a party’s conduct “amounted to a scheme calculated to interfere with the court’s ability to impartially adjudicate [the] claim,” a sanction as severe as dismissal or default judgment is appropriate. ; see also Bob Montgomery Real Estate v. Djokic, 858 So. 2d 371, 375 (Fla. 4th DCA 2003) (“dismissal is properly utilized where a party knowingly misleads the other party, thereby interfering with the other side’s ability to defend (or prosecute) by a knowing deception intended to prevent the essential discovery.”).

DISCLAIMER:The author is not an attorney and is not rendering legal ,financial, or other professional services. The information contained on this web site is the author opinion based on his personal experience. If you need legal advice, consult a competent attorney.

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Bringing down the house of cards

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