By Lane Houk
Fresh off the press of the 2nd District Court of Appeals, today the Fla. 2nd DCA issued a stunning shot across the bow of US financial institutions by reversing a trial court’s decision to grant summary judgment in favor of US Bank, NA.
What is absolutely hilarious about this case is that the homeowners were NOT involved in the case. Rather, BAC Funding Consortium Inc., who was the 2nd mortgagee in the case, appealed the trial courts decision and alleged that US Bank, NA did not have standing to foreclose. Oh the irony… we knew this would happen but it is certainly fun to watch it start to happen. Banks suing Lenders; Lenders suing Trustees; Investors suing Servicers. Much more to come… that’s a promise.
The essence of BAC’s argument? Summary judgment for the plaintiff in mortgage foreclosure action was premature where plaintiff had failed to establish standing to foreclose — Plaintiff moving for summary judgment before an answer is filed must establish that defendant could not raise any genuine issues of material fact if defendant were permitted to answer complaint — Because exhibit to plaintiff’s complaint conflicts with allegations concerning standing and exhibit does not show that plaintiff has standing to foreclose mortgage, plaintiff did not establish entitlement to foreclose mortgage — Incomplete, unsigned, and unauthenticated assignment attached as exhibit to plaintiff’s response to defendant’s motion to dismiss did not constitute admissible evidence establishing standing to foreclose note and mortgage.
The appellate court agreed and said,
“Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank. BAC now appeals, contending that the summary judgment was improper because U.S. Bank never established its standing to foreclose.
The summary judgment standard is well-established. “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). 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.” Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment before the defendant files an answer, “it [is] incumbent upon them to establish that no answer that [the defendant] could properly serve or affirmative defense it might raise” could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So. 2d 763, 764 (Fla. 2d DCA 1987) (holding that when a plaintiff moves for summary judgment before the defendant files an answer, “the plaintiff must conclusively show that the defendant cannot plead a genuine issue of material fact”). As these cases show, a plaintiff moving for summary judgment before an answer is filed 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.