10-2376 initial brief

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. ______________________________________/

APPELLANT’S 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: [email protected] Attorney for Appellant JOHN R. GODSHALK

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TABLE OF CONTENTS

Page Table of Citations 3-4 Preface 4 Issue on Appeal 5 Statement of the Case and Facts 5-6 Summary of Argument 6 Argument 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 13 Certificate of Service 14

Certificate of Font Compliance 15

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TABLE OF CITATIONS

Cases Pages Berg v. Bridle Path Homeowners Association 12 809 So. 2d 32 (Fla. 4th DCA 2002) Bush v. State Farm Fire & Casualty Company, 13 711 So.2d 68 (Fla. 2nd DCA 1998) Campagna v. Dicus, 606 So.2d 1278 (Fla. 2nd DCA 1992) 9, 10 Coberly v. Thor Industries, Inc., 908 So.2d 486 7 (Fla. 5th DCA 2005) Easterling v. Keels, 681 So.2d 744 (Fla. 2nd DCA 1996) 11 Fasano v. Henry W. Hicks, P.A., 667 So.2d 1033 9 Frost v. Regions Bank, 15 So. 3d 905 (Fla 4th DCA 2009) 12 (Fla. 2nd DCA 1996) Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979) 8 Glynn v. Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980) 7 Harrison v. McCourtney, 148 So.2d 53 9 (Fla. 2nd DCA 1962) Haven Federal Savings & Loan Association v. Kirian 8 579 So.2d 730 (Fla. 1991) Holl v. Talcott, 191 So.2d 40 (Fla. 1966) 7, 8, 9 Major League Baseball v. Morsani, 7 790 So.2d 1071 (Fla. 2001) Newton v. Overseas Private Investment Corp., 9, 10 544 So.2d 224 (Fla. 3rd DCA 1989)

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Pet Fair, Inc. v. Humane Society of Greater Miami 11 583 So.2d 407 (Fla. 3rd DCA 1991) Poe v. IMC Phosphates MP, Inc. 11 885 So.2d 397 (Fla. 2nd DCA 2004) Ruiz v. De Varona, 785 So.2d 508 (Fla. 3rd DCA 2000) 10 Stop & Shoppe Mart, Inc., 854 So.2d 784 9, 10 (Fla. 5th DCA 2003) Strickland v. Strickland, 456 So.2d 583 (Fla. 2nd DCA 1984) 7 The Key Bank of Florida v. First United Land 8, 12 Title Co., 502 So.2d 1280 (Fla. 2nd DCA 1987) Vivona v. Colony Point 5 Condominium Ass’n, 10 706 So.2d 391 (Fla. 4th DCA 1998) Florida Rules of Civil Procedure Pages Rule 1.510, Fla.R.Civ.P. 7

PREFACE

The Appellant JOHN R. GODSHALK is referred to in this

APPELLANT’S 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 APPEL LEE LENDER HAS NOT MET ITS INITIAL BURDEN OF CONCLUSIVE LY 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 33-

36).

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

Owner’s 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 APPEL LEE LENDER HAS NOT MET ITS INITIAL BURDEN OF CONCLUSIVE LY 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 court’s granting of the Final Summary Judgment is subject

to a de novo standard of review.

A trial court’s 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 party’s] 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 movant’s 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,

786–787 (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 786–787.

(4) It is fundamental error for a trial court to gr ant 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 Ass’n, 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 defendant’s affirmative defense by the use of competent,

proper and admissible affidavits or evidence; or (2) failed to refute the defendant’s

denial of a material allegation in the complaint, such as a denial or the conditions

precedent allegation.

(5) A trial court’s 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 court’s 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 court’s 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

Owner’s denial of the Conditions Precedent Allegation. Appellant Property

Owner’s 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

Owner’s 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 litigant’s 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


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.



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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).



10-2376 initial brief

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