LORENZO C. GREENE, APPELLANT,
v.
LIFESTYLE BUILDERS OF ORLANDO, INC., APPELLEE
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Summary judgment was premature because the mortgagee moved for it before the mortgagor was required to answer and failed to conclusively negate potential defenses.
The mortgagee filed a mortgage foreclosure action and moved for summary judgment before the mortgagor's answer was due. The trial court granted summar…
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TORPY, J.
In this mortgage foreclosure case, we review the propriety of the summary judgment in favor of Appellee, the mortgagee. Because Appellee filed the motion for summary judgment before the answer was due and failed to meet its burden to establish conclusively that no answer could present a material issue of fact, we conclude that summary judgment was premature. Accordingly, we reverse and remand this cause for further proceedings.
Appellee filed an action to foreclose a second mortgage on Appellant’s property. Before Appellant was required to answer, Appellee moved for and was granted summary judgment at a scheduled hearing. After the hearing, but before the written order was entered, Appellant timely filed his answer, in which he raised two affirmative defenses. Prompted by this filing, the trial court directed the parties to attend a subsequent hearing. At this subsequent hearing, the trial court reaffirmed its earlier ruling. In doing so, the trial court disregarded Appellant’s defenses because they had not been filed prior to the original hearing.
Although several issues are argued by the parties, we find it unnecessary to address every issue. This is a case where Appellee sought summary judgment before the answer was due. Under these circumstances, Appellee had an “unusually heavy” burden to conclusively negate every defense that might be presented in the answer. Rodriguez v. Tri-Square Const., Inc., 635 So. 2d 125, 126 (Fla. 3d DCA 1994); Valhalla, Inc. v. Carbo, 487 So. 2d 1125, 1126 (Fla. 4th DCA 1986); Madison v. Haynes, 220 So. 2d 44, 46 (Fla. 4th DCA 1969). When the court orally granted summary judgment during the original hearing, it did not have the benefit of Appellant’s answer. At the subsequent hearing, the court disregarded the answer. Because Appellant’s defenses were not conclusively negated in the record, we are constrained to reverse.
REVERSED AND REMANDED.
MONACO and LAWSON, JJ., concur.
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Cepero v. The Bank OF NEW York Mellon Tr. Co., N.A., 189 So. 3d 204 (Fla. 4th DCA 2016)…process, it also makes obtaining a summary judgment significantly harder — without an answer, the plaintiff would have to negate any possible affirmative defenses which might be presented in an answer. Greene v. Lifestyle Builders of Orlando, Inc., 985 So. 2d 588, 589 (Fla. 5th DCA 2008). On the merits of the claim, however, we reverse only as to Leslie. The motion alleged that service was improper under section 48.031(2)(a), Florida 'Statutes (2013), because Leslie never gave consent for Raul to accept ser…
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T-Quip OF Fla., Inc. v. Tietig, 207 So. 3d 958 (Fla. 5th DCA 2016)…re an answer has been filed, under such circumstances, the party moving for summary judgment has an “‘unusually heavy* burden to conclusively negate every defense that might be presented in the answer.” Greene v. Lifestyle Builders of Orlando, Inc., 985 So. 2d 588, 589 (Fla. 5th DCA 2008) (citations omitted). We find that Appellee did not meet this heavy burden. Accordingly, we reverse the final summary judgment and remand for further proceedings. REVERSED and REMANDED. COHEN and WALLIS, JJ., concur. . Ap…
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Douglas v. Deutsche Bank Tr. Co., 995 So. 2d 1144 (Fla. 5th DCA 2008)…ent prior to the Douglases filing an answer, but the Bank had the burden of conclusively establishing that no answer which the Douglases might have served could present a genuine issue of material fact. Greene v. Lifestyle Builders of Orlando, Inc., 985 So. 2d 588 (Fla. 5th DCA 2008); Valhalla, Inc. v. Carbo, 487 So. 2d 1125 (Fla. 4th DCA 1986). See Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure, § 25:6 (2007-08 ed.). While we find no viable defense to foreclosure, we conclude a viable defe…
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
- Redento R. Rodriguez & Luisa N. Rodriguez, 635 So. 2d 125 (Fla. 3d DCA 1994)
- Ira D. Madison and Christine Madison v. Deodies Haynes, Jr., 220 So. 2d 44 (Fla. 4th DCA 1969)
- Valhalla, Inc. v. Carbo, 487 So. 2d 1125 (Fla. 4th DCA 1986)