FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Elizabeth G.
Michael P. Fuino and Matthew D. Weidner of Weidner Law, P.A.,
St. Petersburg, for Appellant.
M. Berger of Kelley Kronenberg, Tampa, for Appellee.
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
FACTS AND PROCEDURAL HISTORY
Cagwin and Claude Miranda 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.
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.
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)).
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.
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.
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 ...