ANNE H. CARAPEZZA, APPELLANT,
v.
DORIS PATE AND ORVILLE H. SCHWARTZ, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Carapezza, defendant in a mortgage foreclosure action, appeals the trial court's entry of summary final decree striking her answer as sham. The court reversed, holding that the plaintiff failed to comply with procedural requirements for striking an answer as sham and presented no evidence of ownership of the mortgage and note, which was a material fact put in issue by the defendant's answer.
The court held that the unsworn motion failing to set forth the required facts did not comply with Rule 1.14(b) and could not support striking the answer, and that because ownership of the mortgage and note was put in issue by defendant's answer and was a material fact, the plaintiff was required to prove ownership but failed to do so, rendering the answer not a sham.
“The rule under which the motion to strike was made clearly states that the motion shall be sworn to and shall set forth fully the facts on which the movant relies. The record reveals that the plaintiff failed to comply with either of these requirements and the record is void of anything that would relieve the plaintiff from strictly following the procedure set forth in the rule.”
Establishes that procedural requirements for Rule 1.14 motions are mandatory and cannot be excused
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePate brought a foreclosure action against Carapezza on a mortgage executed to Shinn Construction Company. Carapezza answered, denying that Pate was th…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Summary Judgment Requirements cases and more on FLexlaw
Appellant was defendant below in a suit brought by appellee, plaintiff below to foreclose a mortgage which the defendant had executed to Shinn Construction Company. The plaintiff alleged in her complaint, inter alia, that she was the owner and holder of the mortgage and note. The defendant filed her answer denying, inter alia, that the plaintiff was the owner or holder of the said mortgage and note. Subsequent to the filing of the answer, the plaintiff filed a motion to strike the answer and for the entry of summary final decree under rule 1.14, Florida Rules of Civil Procedure, 30 F.S. A.1 The motion was not sworn to nor did it set forth any facts on which the movant relied. There was an affidavit filed with plaintiff’s motion which dealt with matters other than ownership and possession of the mortgage and note.
The chancellor heard the motion and entered a summary final decree striking the answer as sham and holding that the material allegations of the complaint had been established.
The defendant has assigned several grounds for reversible error. The princi*347pal grounds relied upon are that: (1) the unsworn motion to strike as sham under Rule 1.14, was not sufficient to support the striking of the defendant’s answer as sham in that it was not sworn to and did not set forth fully the facts upon which the movant relied as prescribed by subsection (b) of the rule; (2) there was no proof to show that the party bringing the action and seeking foreclosure was the owner of the mortgage and note. We find that there is merit in appellant’s contention as to both of these points. The rule under which the motion to strike was made clearly states that the motion shall he sworn to and shall set forth fully the facts on which the movant relies. The record reveals that the plaintiff failed to comply with either of these requirements and the record is void of anything that would relieve the plaintiff from strictly following the procedure set forth in the rule. See Dezen v. Slatcoff, Fla.1953, 65 So.2d 484.2
Appellant also argues that there was no evidence to show that the plaintiff was the owner of the note and mortgage being sued upon. The defendant’s answer denied that the plaintiff was the owner and holder of the note and mortgage. Ownership having been put in issue by the answer it followed that ownership of the note and mortgage became one of the issues in the case and was a material fact to be proved by the plaintiff. The record is without any evidence of ownership in the plaintiff and there is no evidence tending to show that the answer denying ownership was a sham.
In Rhea v. Hackney, 117 Fla. 62, 157 So. 190, 193, it was said that a “pleading cannot be stricken out as sham unless the falsity thereof clearly and indisputably appears. * * * The rule cannot be applied to any case except where the defense is shown to be a plain fiction. * * * ” See Guaranty Life Ins. Co. of Florida v. Hall Bros. Press, 138 Fla. 176, 189 So. 243.
Accordingly the final decree appealed from should be and hereby is reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Ginnifer GEE v. U.S. Bank Nat'l Ass'n, 72 So. 3d 211 (Fla. 5th DCA 2011)…Group Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006). When Ms. Gee denied that U.S. Bank had an interest in the Mortgage, ownership became an issue that U.S. Bank, as the plaintiff, was required to prove. See Lizio, 36 So. 3d at 929; Carapezza v. Pate, 143 So. 2d 346, 347 (Fla. 3d DCA 1962). As U.S. Bank failed to offer any proof of American Home’s authority to assign the Mortgage, we conclude that it failed to establish its standing to bring the foreclosure action as a matter of law.3 See Servedio v. U.S. Bank…
-
Lizio v. McCULLOM, 36 So. 3d 927 (Fla. 4th DCA 2010)…Mortgage Group Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006). Where the defendant denies that the party seeking foreclosure has an ownership interest in the mortgage, the issue of ownership becomes an issue the plaintiff must prove. Carapezza v. Pate, 143 So. 2d 346, 347 (Fla. 3d DCA 1962). In the present case, appellant possessed the original note, mortgage, and assignment executed by the personal representative of Haner’s estate. The note was payable to the late John Haner, and the assignment granted Haner’s…
-
Princess D. Brooks v. City OF Miami, 161 So. 2d 675 (Fla. 3d DCA 1964)…ice of her claim to the City. The dismissal cannot be sustained upon the basis of a finding that the pleading was a sham. [*677] Guaranty Life Ins. Co. of Florida v. Hall Bros. Press, Inc., 138 Fla. 176, 189 So. 243; Carapezza v. Pate, Fla.App.1962, 143 So. 2d 346. Nevertheless, we do not feel that this appeal should he decided on that basis because each party has in good faith presented to this court argument upon the real question involved, which is, whether the facts constitute an estoppel against the Cit…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rhea v. Hackney, 117 Fla. 62 (Fla. 1934)
- Guar. Life Ins. Co. v. Hall Bros. Press, Inc., 138 Fla. 176 (Fla. 1939)
- Klock v. Miami Beach Heights, Inc., 65 So. 2d 484 (Fla. 1953)