BILLY A. BRAKEFIELD, APPELLANT,
v.
THE CIT GROUP/CONSUMER FINANCE, INC., APPELLEE
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Billy Brakefield appeals a summary judgment of mortgage foreclosure entered against him by the trial court in favor of CIT Group/Consumer Finance, Inc. The appellate court reverses, holding that CIT Group failed to demonstrate conclusively and with certainty that Brakefield could not raise a genuine issue of material fact, particularly where the record lacked supporting documentation and hearing transcripts.
The court held that the trial court erred in granting summary judgment because CIT Group failed to demonstrate conclusively and to a certainty that Brakefield could not raise any genuine issues of material fact or otherwise plead defenses, and the sparse record did not support entry of judgment as a matter of law.
[1] A plaintiff may move for summary judgment twenty days after filing suit, even if the defendant has not filed an answer.
[2] A movant for summary judgment bears the heavy burden of demonstrating conclusively and with certainty that the non-moving party cannot raise a genuine issue of material f…
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Join FLexlaw to unlock all legal intelligence“the movant must demonstrate conclusively and to a certainty from the record that the defendant cannot plead or otherwise raise a genuine issue of material fact”
Establishes the heavy burden required for summary judgment motions filed before the defendant answers, citing Beach Higher Power Corp. v. Granados.
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Join FLexlaw to unlock all legal intelligenceCIT Group filed a complaint seeking to reestablish a lost promissory note and foreclose on a purchase money mortgage. Fifty-four days after filing the…
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SALCINES, Judge.
Billy A. Brakefield appeals the final summary judgment of mortgage foreclosure entered by the trial court in favor of The CIT Group/Consumer Finance, Inc. (“CIT Group”), upon an unverified complaint which sought to reestablish a lost promissory note and to foreclose the note and purchase money mortgage. We reverse because CIT Group has not demonstrated, conclusively and to a certainty from the record before this court, that Brakefield cannot plead or otherwise raise a genuine issue of material fact.
Fifty-four days after filing the complaint, CIT Group filed a motion for summary judgment of foreclosure. Thereafter, Brakefield did not file an answer, but instead filed a motion to dismiss which challenged the existence of the note and mortgage and alleged that the complaint failed to state a cause of action because it sought to reestablish a lost note.
A hearing was scheduled to consider the motion for summary judgment. Immediately before the hearing, CIT Group filed the original note, which had been located, and the mortgage. Brakefield, who was proceeding pro se, was not present at the hearing; however, the trial court considered his motion to dismiss and allowed CIT Group to drop, as moot, the count of its complaint which sought to reestablish the lost promissory note. The trial court then denied the motion to dismiss and entered a summary final judgment of mortgage foreclosure.
Florida Rule of Civil Procedure 1.510(a) permits a plaintiff to move for summary judgment twenty days after suit has been filed, even if the defendant has not filed an answer. Beach Higher Power Corp. v. Granados, 717 So. 2d 563, 565 (Fla. 3d DCA 1998). However, the burden for such a movant is extremely heavy in that “the movant must demonstrate conclusively and to a certainty from the record that the defendant cannot plead or otherwise raise a genuine issue of material fact.” Id.
The record before this court does not contain affidavits or other documentation in support of CIT Group’s motion for summary judgment, other than the original note and mortgage. Further, the record does not contain transcripts of the hearing on the motion for summary judgment or the hearing on Brakefield’s motion for rehearing and motion to set aside final judgment.
Upon our de novo review of the summary judgment, we hold that the trial court erred when it determined CIT Group had demonstrated conclusively and with certainty that Brakefield could not raise any genuine issues of material fact and, based on the record, that CIT Group was entitled to prevail as a matter of law. Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.
WHATLEY, A.C J., and NORTHCUTT, J., concur.
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Vasiliy Goncharuk & Marina Goncharuk v. HSBC Mortg. Servs., Inc., 62 So. 3d 680 (Fla. 2d DCA 2011)…Sandoro, 55 So. 3d at 782 (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010)). See also Howell v. Ed Bebb, Inc., 35 So. 3d 167, 168 (Fla. 2d DCA 2010); Brakefield v. CIT Group/Consumer Fin., Inc., 787 So. 2d 115, 116 (Fla. 2d DCA 2001). The plaintiff must essentially anticipate the content of the defendant’s answer and establish that the record would have no genuine issue of material fact even if the answer were already on file. In Sandoro, the lender fail…
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Getman v. Tracey Constr., Inc., 62 So. 3d 1289 (Fla. 2d DCA 2011)…ques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010)). The standard is extremely high and the plaintiff’s burden is extremely heavy. See W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla.1988); Brakefield v. CIT Group/Consumer Finance, Inc., 787 So. 2d 115, 116 (Fla. 2d DCA 2001). During the hearing in the present case, counsel for Getman argued that the pleadings were still open and that summary judgment would be inappropriate. Counsel for Tracey Construction argued that no facts were in controversy…
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Winter v. Hager, 3 So. 3d 344 (Fla. 2d DCA 2008)…ce shows that a disputed, material fact existed, including receipt of an email containing the entire ten-page guaranty. It was, thus, error for the trial court to grant summary judgment at this stage. See Brakefield v. CIT Group/Consumer Fin., Inc., 787 So. 2d 115, 116 (Fla. 2d DCA 2001) (reversing summary judgment because movant had not “demonstrated conclusively and with certainty that [the non-movant] could not raise any genuine issues of material fact”). Summary judgment reversed and cause remanded for…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Beach Higher Power Corp. v. Granados, 717 So. 2d 563 (Fla. 3d DCA 1998)
- J.L.F. v. State, 717 So. 2d 563 (Fla. 5th DCA 1998)