JEFF-RAY CORPORATION, APPELLANT,
v.
JAMES CARY JACOBSON, BRUCE M. GOTTLIEB AND MARY E. JACOBSON, APPELLEES
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Jeff-Ray Corporation appealed a summary judgment in a mortgage foreclosure action, challenging both the trial court's denial of its motion for relief and rehearing based on lack of notice, and the denial of its motion to dismiss for failure to state a cause of action. The Fourth District reversed and remanded, finding abuse of discretion in denying the motion for rehearing and that the foreclosure complaint could not have stated a cause of action based on an assignment document that did not exist when the complaint was filed.
The trial court abused its discretion in denying the motion for relief and rehearing because appellant made an unrebutted showing of lack of notice and demonstrated likelihood of substantial prejudice regarding misrepresentation or mistake in the amount due. The trial court also erred in denying the motion to dismiss because the foreclosure complaint could not have stated a cause of action based on an assignment document that did not exist when the complaint was filed.
[1] A trial court abuses its discretion by denying a motion for relief and rehearing when the moving party demonstrates they did not receive notice of the motion or hearing u…
[2] A party seeking relief from a judgment based on lack of notice must show the likelihood of substantial prejudice if not allowed to present a defense.
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Join FLexlaw to unlock all legal intelligence“The appellant made an unrebutted showing that it did not receive notice of the summary judgment motion or hearing until receipt of the judgment itself. It was an abuse of discretion for the trial court to deny appellant's motion for relief and rehearing.”
Establishes the core holding regarding the trial court's abuse of discretion in denying the motion for rehearing without addressing the unrebutted showing of lack of notice.
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Join FLexlaw to unlock all legal intelligenceAppellees filed a mortgage foreclosure complaint on January 4, 1988, alleging an assignment of the mortgage to them in 1986, but the assignment was no…
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PER CURIAM.
We reverse the final summary judgment entered in favor of the plaintiffs in this mortgage foreclosure. The appellant made an unrebutted showing that it did not receive notice of the summary judgment motion or hearing until receipt of the judgment itself. It was an abuse of discretion for the trial court to deny appellant’s motion for relief and rehearing. The appellant has shown the likelihood that substantial prejudice may occur if not allowed to rebut and show misrepresentation or mistake in the amount due, which is substantially at variance with the defendant’s claimed amortization. We recognize that an apparent prior lack of diligence in the defense may have influenced the trial court decision on the motion for rehearing. However, in the absence of findings or any rebuttal of the appellant’s affidavits, the motion for rehearing should have been granted. We note that the defendants’ motion was filed immediately upon receipt of the court order. Cf. Zimmerman v. Vinylgrain Indus., 464 So. 2d 1353 (Fla. 1st DCA 1985); Lacore v. Giralda Bake Shop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1981). See also Okeechobee Ins. Agency, Inc. v. Barnett Bank, 434 So. 2d 334 (Fla. 4th DCA 1983).
We also reverse and remand on the second point raised by . appellant; that is, that the trial court erred in denying defendant’s March 9,1988, motion to dismiss for failure to state a cause of action. Appellees’ complaint for mortgage foreclosure was filed on January 4, 1988, and alleged an assignment of the subject mortgage to them in 1986. However, it was not attached to the complaint. When the alleged assignment was finally produced, it was dated April 18, 1988, some four months after the lawsuit was filed.
Our opinion in Safeco Insurance Co. v. Ware, 401 So. 2d 1129 (Fla. 4th DCA 1981), would support dismissal of the action based on failure to comply with Florida Rule of Civil Procedure 1.130. Given the scenario before us, appellees’ complaint could not have stated a cause of action at the time it was filed, based on a document that did not exist until some four months later. Marianna & B.R. Co. v. Maund, 62 Fla. 538, 56 So. 670 (Fla.1911). If appellees intend to proceed on the April 18, 1988, assignment, they must file a new complaint.
Therefore, the final summary judgment is reversed and remanded for further proceedings in accordance with this opinion.
ANSTEAD and POLEN, JJ., concur. STONE, J., concurs in part and dissents in part with opinion.
STONE, Judge,
concurring in part and dissenting in part.
I concur in reversing the order denying appellant’s motion for relief and rehearing for the reasons stated in the majority opinion. As to the second point discussed in the majority opinion and as to all other issues raised on appeal, I would affirm.
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McLEAN v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012)…sition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) (“Because J.P. Morgan did not [*174] own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action.”); see also Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (holding that a foreclosure complaint failed to state a cause of action where plaintiffs relied on assignment of mortgage that was dated four months after the lawsuit was filed). Even where an assignment of mortgage does no…
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Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013)…ss Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1284-85 (Fla. 2d DCA 2005) (following Voges v. Ward, 98 Fla. 304, 123 So. 785 (1929), and Marianna & B.R. Co. v. Maund, 62 Fla. 538, 56 So. 670 (1911)); see also Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (following Marianna, 62 Fla. 538, 56 So. 670). We note that the supreme court has not applied this standing principle in the exact context presented in this case. And we question whether, in light of the ongoing foreclosure…
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Progressive Express Ins. Co. v. McGRATH Community Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005)…ing to file a lawsuit after the fact. In this case, if the Provider was without standing when the action was filed, the PIP action was at best premature. See Livingston, 774 So. 2d at 717. A new lawsuit must be filed. See Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (holding that the assignee of a mortgage could not maintain the mortgage foreclosure action because the assignment was dated four months after the action was filed; if the plaintiff wished to proceed on the assignment, it mu…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Marianna & Blountstown R.R. Co. v. Maund, 62 Fla. 538 (Fla. 1911)
- Martine Lacore v. Giralda Bake Shop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1981)
- Ward D. Zimmerman v. Vinylgrain Indus. OF Jacksonville, Inc., 464 So. 2d 1353 (Fla. 1st DCA 1985)
- Okeechobee Ins. Agency, Inc. v. Barnett Bank OF Palm Beach Cnty., 434 So. 2d 334 (Fla. 4th DCA 1983)
- Safeco Ins. Co. OF Am. v. Ware, 401 So. 2d 1129 (Fla. 4th DCA 1981)