MAWI CORPORATION, A FLORIDA CORPORATION, APPELLANT,
v.
ADVANCE MORTGAGE CORPORATION, A DELAWARE CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEE
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MAWI Corporation appealed a summary judgment foreclosure against it as a junior lienor. The court affirmed the foreclosure, finding no genuine issue of material fact and upholding the trial court's denial of MAWI's motion to amend its pleadings to assert a superior equitable lien claim.
The court affirmed the summary judgment, holding that the original affirmative defenses and counterclaim raised no genuine issues of material fact. The court also held that the trial court did not abuse its discretion in denying the motion to amend because it was filed one day before the hearing and the amended allegations contradicted the party's prior pleadings and affidavits.
[1] A summary final judgment of foreclosure is proper when the defendant's affirmative defenses and counterclaim do not raise genuine issues of material fact.
[2] A motion to amend pleadings filed immediately before a hearing on a motion for summary judgment may be denied if the proposed amendments contradict prior pleadings and af…
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Join FLexlaw to unlock all legal intelligence“neither the affirmative defenses raised by appellant in its answer to appellee's complaint for foreclosure, nor its counterclaim for a superior equitable lien, raised any genuine issues of material fact prohibiting the entrance of a summary final judgment in favor of appellee”
Establishes that the original pleadings did not create factual disputes that would defeat summary judgment
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Join FLexlaw to unlock all legal intelligenceAdvance Mortgage Corporation, a construction lender and mortgagee, brought a foreclosure action against various junior lienors including MAWI Corporat…
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PER CURIAM.
This appeal is taken from a sun-unary final judgment of foreclosure, rendered in favor of appellee/plaintiff, the construction lender and mortgagee, and against various junior lienors, including appellant/defendant. , After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that neither the affirmative defenses raised by appellant in its answer to appellee’s complaint for foreclosure, nor its counterclaim for a superior equitable lien, raised any genuine issues of material fact prohibiting the entrance of a summary final judgment in favor of appellee.
The only question of merit concerning the propriety of the summary judgment is by way of the chancellor’s refusal to permit appellant to file an amended counterclaim and amended affirmative defenses, the contents of which might have raised a genuine issue of material fact, i. e., that appellant had completed work on the project prior to the execution of the note and mortgage, creating a superior equitable lien in favor of appellant.
In that the motion to amend the affirmative defenses and counterclaim was filed one day before the hearing on appellee’s motion for summary judgment and the allegations raised by the amended pleadings were contradictory to prior pleadings and affidavits which stated that labor and services were first performed on the property after the note and mortgage were executed, we cannot say that the chancellor abused his discretion in denying the motion to amend. Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So. 2d 526 (Fla.2d DCA 1970); Houston Texas Gas & Oil Corporation v. Hoeffner, 132 So. 2d 38 (Fla.2d DCA 1961).
Accordingly, the summary final judgment is hereby affirmed.
Affirmed.
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Avra Jain v. Buchanan Ingersoll & Rooney PC, 322 So. 3d 1201 (Fla. 3d DCA 2021)…ons, affidavits, depositions or testimony in order to defeat a summary judgment. Inman, 342 So. 2d at 1070 (citing Home Loan Co. Inc. of Boston v. Sloane Company of Sarasota, 240 So. 2d 526 (Fla. 2d DCA 1970)); MAWI Corp. v. Advance Mortg. Corp., 353 So. 2d 564, 565 (Fla. 3d DCA 1977). Affirmed.…
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B. C. C., Inc. v. Rozyner, 365 So. 2d 207 (Fla. 3d DCA 1978)…n v. Cobbs Fruit & Preserving Company, 229 So. 2d 607 (Fla. 1st DCA 1969), and Fink v. Powsner, 108 So. 2d 324 (Fla. 3d DCA 1958); Lipton v. Southeast First Nat. Bank of Miami, 343 So. 2d 927 (Fla. 3d DCA 1977); Mawi Corp. v. Advance Mortgage Corp., 353 So. 2d 564 (Fla. 3d DCA 1977).…
Authorities Cited
- Houston Tex. GAS & OIL Corp. v. Hoeffner, 132 So. 2d 38 (Fla. 2d DCA 1961)
- Home Loan Co. Inc. OF Boston v. The Sloane Co. OF Sarasota, 240 So. 2d 526 (Fla. 2d DCA 1970)