IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT CASE NO: 2D14-0061 L.T. CASE NO: 2011-CA-011993 U.S. BANK NATIONAL ASSOCIATION, N.A., Appellant, v. JENNIFER CAPE. Appellee. INITIAL BRIEF OF APPELLANT Attorneys for Appellant Law Office of Daniel C. Consuegra, P.L. Christopher Hixson, Esq. (Fla. Bar. No. 41158) 9204 King Palm Drive Tampa, FL 33619 Tel: (813) 915-8660/ Fax: (813) 915-0559 attorneynotice@consuegralaw.com e-service Christopher.Hixson@consuegralaw.com all other correspondence
TABLE OF CONTENTS PAGE Table of Contents i Table of Authorities... iii Introduction...1 Statement of the Case and Facts.. 1 Summary of Argument. 3 Standard of Review..4 Argument..4 I. THE TRIAL COURT ERRED IN FAILING TO DENY THE MOTION PENDING A DEPOSITION OF THE PARTY MOVING FOR SUMMARY JUDGMENT 4 a. Plaintiff Was Timely In Seeking Discovery.. 5 b. The Deposition Was To Gain Knowledge, In Particular If It Provided Adequate Notice To The Defendant.6 II. THE TRIAL COURT ERRED IN FAILING TO DENY THE MOTION DUE TO A GENUINE ISSUE OF MATERIAL FACT..7 a. The Standard to Grant a Motion of Summary Judgment Is By First A Showing Of Admissible Evidence There Are No Genuine Issues Of Material Fact 7 b. There Exists A General Issue Of Material Fact In The Matter, i
What Mortgage Are The Parties Proceeding Under? 10 III. U.S. BANK WAS DEPRIVED OF THE ABILITY TO ARGUE AS TO THE CONTENT OF THE BREACH LETTER BEING ADEQUATE..13 Conclusion.14 Certificate of Compliance...15 Certificate of Service....16 ii
TABLE OF AUTHORITIES Cases Bryson v. Branch Banking and Trust Company, 75 So.3d 783 (2 nd DCA 2011) Carmona v. Wal-Mart Stores, East, LP, 81 So.3d 461, 463 (2 nd DCA 2012) Congress Park Office Condos, II v. First-Citizens Bank & Trust Co., 105 So.3d 602 (4 th DCA 2013) Estate of Githens ex rel. Seaman v. Bon Secours Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (2 ND DCA 2006) Page 8,9,10,11 13 5,6 8 Holl v. Talcott, 191 So.2d 40, 46-47 (Fla. 1966) 8 Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001) 4 UFF DAA Inc. v. Town Realty, Inc., 666 So.2d 199 (5 th DCA 1995) 4 U.S. Bank, N.A. v. Busquets, 135 So.3d 488 (2 nd DCA 2014) 7 Rules Page Fla. R. Civ. P. Form 1.944 Mortgage Foreclosure Complaint 11,12 Fla. R. Civ. P. 1.510 11,12 iii
INTRODUCTION This appeal involves a simple residential foreclosure action initiated on September 21, 2011, in which the mortgagee sought to foreclose a mortgage on real property. In this appeal, Appellant, U.S. BANK NATIONAL ASSOCIATION will be referred to as U.S. BANK, Appellant or Plaintiff. Appellee, Jennifer Cape, will be referred to as Appellee, Defendant or CAPE. All references to the record will be referenced by the letter R. followed by the applicable volume and page number(s). If the citation points to a portion of a hearing transcript, the numbers post the R. are the line numbers, i.e. (R:1-5). STATEMENT OF THE CASE AND FACTS This appeal arises out of a final order granting Defendant s Amended Motion for Summary Judgment or to Dismiss Complaint. (R. 120) On September 21, 2011, U.S. Bank filed its Complaint against Cape and other inferior lien holders to foreclose on the mortgage at issue in this matter. (R. 5-36) A copy of the mortgage and note that U.S. Bank was suing upon was attached to the Complaint. (R. 15-31) Mr. Mark Stopa entered his appearance for Cape on October 28, 2011. (R. 42) Shortly thereafter, U.S. Bank filed the original Mortgage and Assignment of Mortgage. (R. 45-69) On December 30, 2011, Defendant filed its Motion for Summary Judgment or Dismiss Case, citing three different grounds for dismissal, including a) non-compliance with paragraph 22, b) the note is non-negotiable, c) 1
the Complaint was not properly verified and d) no cost bond had been entered. (R. 70-76) On August 9, 2012, U.S. Bank filed its Supplemental Affidavit as to Notice Requirements, attaching and verifying that a letter in compliance with paragraph 22 of the Mortgage in fact was sent to Cape, contrary to her assertions by way of her Motion for Summary Judgment. (R. 85-90) On August 27, 2013, a member of the senior litigation team for U.S. Bank s counsel s office was substituted as counsel in this matter (R. 101-103) and immediately served discovery upon the Defendant, including a Notice of Taking Deposition. Defendant s response was to file a Motion for Protective Order a mere 8 days later. (R. 108-109) U.S. Bank then filed its Motion to Compel Deposition of the Defendant shortly thereafter. (R. 110-112) On September 27, 2013, less than 30 days from that initial request to take the deposition of Cape, Cape filed an Amended Motion for Summary Judgment or to Dismiss Complaint only to argue that the breach letter does not comply with paragraph 22 of the mortgage. (R. 117-119) Cape then set the Motion down for hearing on December 16, 2013 and Plaintiff cross noticed its Motion to Compel Depositions for the same time. As of the December 16, 2013 hearing date, Cape filed no Answer, no affidavits, no interrogatory responses, or any other document in support of its Amended Motion for Summary Judgment or to Dismiss Complaint. 2
On December 16, 2013, the Honorable Frank Gomez, sitting for the lower tribunal, heard Plaintiff s Motion to Compel Depositions and Defendant s Amended Motion for Summary Judgment or to Dismiss Complaint. (R. 162) Upon conclusion of the hearing, the Honorable Court ruled in favor of the Defendant and dismissed the matter without prejudice. (R. 120, 178) Plaintiff filed its Motion for Attorney Fees and Costs on December 21, 2013, (R. 121-146), while Defendant filed its Motion for Attorney Fees and Costs on January 6, 2014. Plaintiff also filed its Motion to Stay on February 24, 2014. A hearing is set on all of these matters on August 22, 2014. Plaintiff timely filed its Notice of Appeal on December 31, 2013. (R. 187-189). SUMMARY OF ARGUMENT It is the Appellant s burden to show that the lower court committed reversible error in entering the Order granting Defendant s Amended Motion for Summary Judgment. In this matter, the lower court failed in several manners when granting the Defendant s Amended Motion for Summary Judgment. The lower court erred by failing to deny the motion or continue the hearing pending a deposition of the Defendant and by failing to deny the motion despite having a lack of authenticated proper evidence before the court, more specifically the mortgage that is at issue to determine if the Defendant s argument that paragraph 22 actually applies or not in this matter. Finally, Plaintiff s due process was violated when it 3
was not permitted to argue against the breach letter content argument that the Defendant argued, despite asking for permission to do so, and the Court ruling on Defendant s content issue. Accordingly, the Order should be reversed. STANDARD OF REVIEW The standard of review of an order on a motion for summary judgment is de novo. Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001). Accordingly, this Honorable Court is not required to give any deference to the lower court s ruling and the particular facts of the instant action show that the Order should be reversed for the reasons set forth below. ARGUMENT I. THE TRIAL COURT ERRED IN FAILING TO DENY THE MOTION PENDING A DEPOSITION OF THE PARTY MOVING FOR SUMMARY JUDGMENT To grant summary judgment by a moving party when their deposition is pending is reversible error. See UFF DAA Inc. v. Town Realty, Inc., 666 So.2d 199 (5 th DCA 1995)( Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure, including the taking of depositions, and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending. ) On August 27, 2013, Plaintiff served its Notice of Deposition upon the Defendant. At this point in time, Defendant s original Motion for Summary Judgment had not been set for hearing. 8 days later, 4
Defendant filed its Motion for Protective Order and Plaintiff subsequently filed its Motion to Compel Depositions. All of this occurred prior to the September 27, 2013 filing of Defendant s Amended Motion for Summary Judgment. The eventual hearing on the matter was addressed to Judge Gomez who ruled that it was not a persuasive argument. a. Plaintiff Was Timely In Seeking Discovery Defendant s main proposition in opposition to Plaintiff s request for depositions and to deny the Motion for Summary Judgment is that the Plaintiff waited too long to take discovery so it is waived. See Congress Park Office Condos, II v. First-Citizens Bank & Trust Co., 105 So.3d 602 (4 th DCA 2013). Counsel for the Defendant articulated that the Plaintiff took to long to take discovery so to bad. This is not what Congress Park stands for. Congress Park stands for a proposition completely different. First, in reading the decision, the factual basis is distinguishable from our case. In Congress Park, the Defendant sought discovery a month after the Plaintiff filed its Motion for Summary Judgment and after a hearing was set in the matter. In our case, Plaintiff filed its discovery and was seeking a deposition of the defendant, to even the extent of a motion to compel, prior to any hearing being set on a Motion for Summary Judgment. Our case s factual basis is Congress Park but turned on its head and shows that the Plaintiff did not just sit back and do nothing, but in fact attempted to 5
invoke its discovery rights to flesh out issues necessary for the adjudication of the case, including the Amended Motion for Summary Judgment. It should be further noted that the Court, upon learning of the outstanding discovery and other various discovery motions in Congress Park unilaterally continued the summary judgment hearing, presumably because of the clear and defined precedent that summary judgment is not proper with outstanding discovery pending. Accordingly, in our case, the Motion for Summary Judgment should have been continued or denied based upon pending discovery and this Honorable Court should reverse upon this ground alone. b. The Deposition Was To Gain Knowledge, In Particular If It Provided Adequate Notice To The Defendant Defendant s additional argument in opposition to Plaintiff s request for depositions and to deny the Motion for Summary Judgment is that no matter what is asked at the deposition, the content of the breach letter will not change. (R. 159: 3-11) Plaintiff conceded that the content will not change, (R. 173:9-10), but articulated the true reason for needing such deposition, to see if the Defendant actually did know his rights under the mortgage after reading the document. (R. 165: 19-22; 173: 9-19; 174 : 20-25; 175:1-2) In other words, did the Defendant have actual or adequate notice of her rights. Plaintiff further needed to see if the Defendant is traveling under the same mortgage as the Plaintiff, if not, then we 6
don t know what condition precedent may exist, if at all. (R. 165: 23-25; 166: 1-19; 167:15-25) At the time of this hearing, the lower court was not afforded the ruling of this Honorable Court in its seminal breach letter case regarding mortgage foreclosures, U.S. Bank, N.A. v. Busquets, 135 So.3d 488 (2 nd DCA 2014). In that decision, this Honorable Court articulated that the standard of review of a breach letter in mortgage foreclosure cases is if such provided adequate notice. see Id. at 490. Accordingly, the deposition of the borrower, and their knowledge of their rights when reading the letter, are vital because no matter how the letter is written, if they understand from the language as written the facts and rights as under the term of the mortgage paragraph 22, then they will have been provided adequate notice and the notice is compliant. This is the same rationale as articulated by the Plaintiff during the hearing. (R. 165: 19-22; 173: 9-19; 174 : 20-25; 175:1-2). Accordingly, the Plaintiff was not afforded this right, summary judgment entry was premature and should be reversed. II. THE TRIAL COURT ERRED IN FAILING TO DENY THE MOTION DUE TO A GENUINE ISSUE OF MATERIAL FACT a. The Standard to Grant a Motion of Summary Judgment Is By First A Showing Of Admissible Evidence There Are No Genuine Issues Of Material Fact 7
Only after it is conclusively shown that party moved against cannot offer proof to support position on genuine issues of material issues in cause, should its right to trial be foreclosed. Holl v. Talcott, 191 So.2d 40, 46-47 (Fla. 1966)(granting rehearing to movant). The Supreme Court of Florida set the standard as to the granting of summary judgment motions in general. They indicated that the burden of proving the absence of a genuine issue of material fact is upon the moving party. Id. at 43. The Court goes on to state [u]ntil it is determined that the movant successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried. Id. Finally the Court states that [t]his means before it becomes necessary to determine the legal sufficiency of the affidavits or other evidence submitted by the party moved against, it must first be determined that the movant has successfully met his burden of proving a negative. Id. The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party. Id. Further, the evidence must be admissible evidence that is utilized. Estate of Githens ex rel. Seaman v. Bon Secours Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (2 ND DCA 2006). This Honorable Court set forth the standard for Summary Judgment motions in a foreclosure case revolving around the issue of a breach letter. See Bryson v. 8
Branch Banking and Trust Company, 75 So.3d 783 (2 nd DCA 2011). This Honorable Court explained that: A movant is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Estate of Githens ex rel. Seaman v. Bon Secours Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) quoting Fla. R. Civ. P. 1.510(c)). The party moving for summary judgment bears the burden of establishing irrefutably that the nonmoving party cannot prevail. See Hervey v. Alfonso, 650 So.2d 644, 645 46 (Fla. 2d DCA 1995). [I]t is only after the moving party has met this heavy burden that the nonmoving party is called upon to show the existence of genuine issues of material fact. Id. at 646; see also Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966) ( Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried. ); Deutsch v. Global Fin. Servs., LLC, 976 So.2d 680, 682 (Fla. 2d DCA 2008) ( The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof. ); Berenson v. S. Baptist Hosp. of Fla., Inc., 646 So.2d 809, 810 (Fla. 1st DCA 1994) (noting that the nonmoving party need make no showing in support of his claim until the moving party has, by affidavit or otherwise, completely negated all allegations and inferences raised by the nonmoving party ). On summary judgment, the trial court's function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, the nonexistence of a genuine issue of a material fact. Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004) (quoting Besco USA Int'l Corp. v. Home Sav. of Am. FSB, 675 So.2d 687, 688 (Fla. 5th DCA 1996)). Where a defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency. See Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009); Newton v. 9
Overseas Private Inv. Corp., 544 So.2d 224, 225 (Fla. 3d DCA 1989). (Emphasis added). Id. at 74. (emphasis added) It should be noted that the procedural posture in this matter is not of the typical foreclosure matter. Typically, the Court is faced with a Plaintiff seeking summary judgment against a Defendant. The procedural posture in this matter and in regards to this Motion, unlike in Bryson, is the Defendant that bears this heavy burden of establishing irrefutably that the nonmoving party (here the Plaintiff) cannot prevail. Id. (emphasis added). For the following reasons, this Court should reverse the lower court s Order. b. There Exists A General Issue Of Material Fact In The Matter, What Mortgage Are The Parties Proceeding Under? Both the Defendant and the Honorable Court in this matter focused on a tree instead of the forest in this matter. In doing so, they lost the path that they were required to take to find their way to the tree, and accordingly, reversible error ensued in the granting of Defendant s Amended Motion for Summary Judgment. To prevail in a foreclosure action, the Plaintiff must show that: (1) The Defendants executed the note and mortgage; (2) The Mortgage was recorded; (3) Plaintiff owns and holds the note and mortgage; (4) the real property is owned by the Defendants; (5) the Defendants have defaulted by failing to pay on and after a date certain; (6) Plaintiff accelerated the debt; (7) Defendants owe Plaintiff an 10
amount certain at the time of filing the complaint; and that (8) Notice of default and intent to accelerate was sent to the Defendant(s) at the real property address. See Fla. R. Civ. P. Form 1.944 Mortgage Foreclosure Complaint. While this case is in the opposite posture, where the Defendant must prove their assertion that the breach letter was faulty under paragraph 22 of the mortgage, the same overarching elements and principles apply, that being that you must start from the top to get to the paragraph 22 of the mortgage. First, paragraph 22 of the mortgage is inherently implying that a mortgage exists that is the binding relationship between the parties. If the court does not know what mortgage is the binding relationship between the parties, the court cannot even know if there is a paragraph 22 condition to be met. This is a vital piece of information that must be corroborated when in the posture of a Motion for Summary Judgment. The reason that such is important in this matter, is that the only evidence as being relied on by the Defendant is that the Mortgage is attached to the Complaint and thus can be used pursuant to Fla. R. Civ. P. 1.510. This is faulty logic as explained in Bryson, as the evidence must be in admissible form to be contemplated for the Motions purposes. There are several ways for Defendant to have put the mortgage into admissible form for purposes of a Motion for Summary Judgment. The Defendant could have filed an answer admitting that the mortgage attached to the complaint was the 11
correct mortgage, the Defendant could have admitted via affidavit that the mortgage attached to the complaint is the correct mortgage, or they could have requested judicial notice of the original or certified copy of the mortgage and admitted it was the correct mortgage to be traveling under. In fact, the Defendant in this matter did not file an answer, did not file an affidavit, did not file anything in support of its Motion for Summary Judgment, but merely asserted that because the mortgage was attached to the Complaint, that it was properly utilized. Assume arguendo that this is true. Then there would not be a requirement for a plaintiff to authenticate a breach letter by affidavit, as required by Bryson, or present the original mortgage or a certified copy of a mortgage at the time of ruling on a motion for summary judgment as they could simply indicate to the court that it is attached to the Complaint and thus it is admissible for purposes of a motion for summary judgment pursuant to Fla. R. Civ. P. 1.510. We know that not only this is inaccurate by common sense, but by case law also that Plaintiff presented at the time of the hearing. Accordingly, with no mortgage agreed upon to decide if a paragraph 22 is even a provision to be examining, there exists a genuine issue of material fact and the Court should have denied the Motion and this Honorable Court should reverse the Order. 12
III. U.S. BANK WAS DEPRIVED OF THE ABILITY TO ARGUE AS TO THE CONTENT OF THE BREACH LETTER BEING ADEQUATE Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard. The same protection is provided by both the Florida and United States Constitutions. Carmona v. Wal-Mart Stores, East, LP, 81 So.3d 461, 463 (2 nd DCA 2012)(citations omitted). Respectfully, Plaintiff s were not afforded their right to be heard at this hearing as evidenced by the transcript of the hearing. Defendant s counsel was able to present all of his arguments, including argument as to the actual content portion of the breach letter at issue. (R. 152-156:3) Plaintiff, while addressing its procedural arguments and to not put the cart before the horse, argued that the Court cannot even get to this analysis as Defendant s counsel skipped ahead regarding content without first addressing the deposition issue as well as the issue of the proper mortgage being utilized. Instead, Plaintiff requested that if the Court does not agree with Plaintiff, that Plaintiff be allowed to address the content argument at that time. (R. 169:4-8) After further argument, Judge Gomez then indicated he thought the letter was not in compliance and ruled in favor of the Defendant. (R. 175: 2425, 176 :1-13). The Judge, prior 13
to that, did not allow Plaintiff to argue as to the substance that he eventually ruled on, nor after. (R. 176-178:1-10) As Plaintiff was unable to be heard to rebut the content arguments of the Defendant at all, and the content argument was the fundamental ruling of the Judge, Plaintiff was devoid of due process and the Order should be vacated. CONCLUSION U.S. BANK respectfully requests this Honorable Court reverse the entry of the Order in this matter due to the foregoing reasons. The Trial Court failed to deny the motion due to pending depositions of the moving party as well as the genuine issue of material fact if the paragraph 22 the Defendant was moving under was even the proper condition precedent in this case and the Plaintiff was unable to respond to Defendant s main argument after requesting to be heard upon it. Respectfully submitted this 7 th day of August, 2014. Christopher Hixson, Esq. Law Offices of Daniel C. Consuegra, P.L. Christopher Hixson, Esq. // Florida Bar #41158 9204 King Palm Drive Tampa, Florida 33619-1328 Tel (813) 915-8660 Fax (813) 915-0559 14
attorneynotice@consuegralaw.com - e-service christopher.hixson@consuegralaw.com - all other correspondence CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this petition complies with the font requirements of Fla. R. App. P. 9.210(a)(2). Christopher Hixson, Esq. Law Offices of Daniel C. Consuegra, P.L. Christopher Hixson, Esq. // Florida Bar #41158 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. Mail/email this 7 th day of August, 2014, to: JENNIFER A. CAPE C/O MARK P. STOPA, ESQ. STOPA LAW FIRM 2202 N. WESTSHORE BLVD., SUITE 200 TAMPA, FL 33607 foreclosurepleadings@stopalawfirm.com BANK OF AMERICA, NATIONAL ASSOCIATION BLANK ROME, LLP 1200 N. FEDERAL HIGHWAY SUITE 312 BOCA RATON, FL 33432 kmcdonough@blankrome.com 15
LAKEVIEW VILLAGE HOMEOWNERS ASSOCIATION OF BRANDON, INC. C/O BARBARA E. OWENS 1338 CORNER OAKS DRIVE BRANDON, FL 33510 Christopher Hixson, Esq. 16