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Cagwin v. Thrifty Rents, Inc.

Florida Court of Appeals, Second District

June 9, 2017

LINDA CAGWIN, Appellant,
v.
THRIFTY RENTS, INC., Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Elizabeth G. Rice, Judge.

          Michael P. Fuino and Matthew D. Weidner of Weidner Law, P.A., St. Petersburg, for Appellant.

          Erin M. Berger of Kelley Kronenberg, Tampa, for Appellee.

          CASANUEVA, Judge.

         Linda Cagwin appeals a final judgment of foreclosure entered in favor of Thrifty Rents, Inc., on Thrifty Rents' motion for summary judgment. We reverse and remand for further proceedings.

         I. FACTS AND PROCEDURAL HISTORY

         Ms. Cagwin and Claude Miranda[1] executed a promissory note and mortgage in favor of Thrifty Rents. Thrifty Rents filed a foreclosure complaint on May 28, 2014, alleging that the loan was in default and all payments were due and owing since December 1, 2011. The borrowers filed an answer and affirmative defenses, including an allegation that payments had been made and the amount claimed as owed was incorrect.

         Thrifty Rents filed a motion for summary judgment and affidavits in support of the summary judgment. Ms. Cagwin responded with an affidavit in opposition alleging, among other things, that she was entitled to a credit in the amount of $100, 000 and that Thrifty Rents had failed to properly apply that credit. The trial court entered a uniform final judgment of foreclosure following a hearing on the motion for summary judgment. We have no transcript of the summary judgment hearing. Ms. Cagwin filed a motion for rehearing, which was denied without a hearing. For the reasons discussed below, we conclude that the trial court abused its discretion by denying Ms. Cagwin's motion for rehearing, and we reverse and remand for further proceedings.

         II. ANALYSIS

         We review a ruling on summary judgment de novo. Gonzalez v. Deutsche Bank Nat'l Tr. Co., 95 So.3d 251, 253 (Fla. 2d DCA 2012) (quoting Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1116-17 (Fla. 2d DCA 2011)). The movant must establish the absence of a genuine issue of material fact and must refute the affirmative defenses or establish that they are legally insufficient. Id. We view every possible inference in favor of the nonmoving party. Id. "If the record reflects the existence of any genuine issue of material fact, or the possibility of an issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Coral v. Garrard Crane Serv., Inc., 62 So.3d 1270, 1273 (Fla. 2d DCA 2011) (quoting Christian v. Overstreet Paving Co., 679 So.2d 839, 840 (Fla. 2d DCA 1996)).

         Thrifty Rents filed an affidavit in support of summary judgment identifying the amounts alleged to be due and owing. While Ms. Cagwin questions whether the affiant had sufficient knowledge to attest to the matters set forth in the affidavit, we cannot determine whether such a challenge was properly raised or addressed at the summary judgment hearing because we have no transcript. See Zarate v. Deutsche Bank Nat'l Tr. Co., 81 So.3d 556, 557-58 (Fla. 3d DCA 2012) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979)). Accordingly, we cannot say that the trial court erred in relying on the affidavit executed by Thrifty Rents' president.

         In response to the motion for summary judgment, Ms. Cagwin filed a reply and objection to the motion, as well as an affidavit in opposition raising at least one issue of material fact. See Bair v. City of Clearwater, 196 So.3d 577, 583 (Fla. 2d DCA 2016) (stating that once the movant establishes that there was no genuine issue of material fact, the burden shifts to the nonmovant to establish that a genuine issue of material fact does exist). She alleged that she transferred property to Thrifty Rents in 2011 in partial payment of the loan, she was entitled to a credit in the amount of $100, 000 based on that transfer, and the amount was not properly applied, resulting in improper penalties and interest. A copy of the deed was attached to the affidavit.

         While we have no transcript of the hearing, the parties seem to agree that the trial court rejected Ms. Cagwin's affidavit as deficient because it was acknowledged rather than sworn to. Nonetheless, Ms. Cagwin argues that she corrected this ...


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