Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. Bank N.A v. Holbrook

Florida Court of Appeals, Second District

September 15, 2017

U.S.BANK N.A., AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE J.P. MORGAN ALTERNATIVE LOAN TRUST 2007-S1 MORTGAGE PASS-THROUGH CERTIFICATES Appellant,
v.
EARL HOLBROOK, Appellee.

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

         Appeal from the Circuit Court for Pinellas County; Jack Day, Judge.

          Allison Morat of Pearson Bitman LLP, Maitland, for Appellant.

          Jan T. Govan of Govan Law Group, P.A., Clearwater, for Appellee.

          LUCAS, Judge.

         In this residential mortgage foreclosure case, U.S. Bank, N.A., as Trustee, on behalf of the holders of the J.P. Morgan Alternative Loan Trust 2007-S1 Mortgage Pass-Through Certificates (U.S. Bank), appeals the circuit court's final summary judgment entered against it on the bank's complaint to reform and foreclose a mortgage on Earl Holbrook's property.[1] We review a ruling on summary judgment de novo. Treasure Coast Marina, LC v. City of Fort Pierce, 219 So.3d 793, 802 n.13 (Fla. 2017); ALS Maxim I LLC v. Katsenko, 218 So.3d 472, 473 (Fla. 2d DCA 2017). As we observed in Katsenko:

Summary judgment is appropriate "only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law." Reed v. Schutz Litig. LLC, 117 So.3d 486, 488 (Fla. 2d DCA 2013) (quoting MarElia v. Yanchuck, Berman, Wadley & Zervos, P.A., 966 So.2d 30, 33 (Fla. 2d DCA 2007)). The movant "has the burden to establish irrefutably that the nonmoving party cannot prevail were a trial to be held." Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011).

218 So.3d at 473.

         At the time the circuit court entered summary judgment, Mr. Holbrook had not filed an answer, nor had he responded to any of U.S. Bank's discovery requests. Indeed, Mr. Holbrook had adamantly refused to sit for his deposition, necessitating the filing of a contempt motion against him, which, at the time of the summary judgment hearing, was still pending. On this record, then, it is clear to us that the circuit court's entry of summary judgment was premature. See Brandauer v. Publix Super Mkts., Inc., 657 So.2d 932, 933 (Fla. 2d DCA 1995) ("As a general rule, a court should not enter summary judgment when the opposing party has not completed discovery."); Colby v. Ellis, 562 So.2d 356, 357 (Fla. 2d DCA 1990) ("As a general rule, it is premature to grant a motion for summary judgment where the opposing party has not completed its discovery and there are discovery motions pending before the court."); Settecasi v. Bd. of Pub. Instruction of Pinellas Cty., 156 So.2d 652, 654 (Fla. 2d DCA 1963) ("Although a plaintiff may move for summary judgment before the defendant has answered, the motion should not be granted unless it is clear that an issue of material fact cannot be presented."). Furthermore, the circuit court's summary judgment relied upon evidence concerning a prior civil proceeding and adjudication that Mr. Holbrook submitted for the first time at the summary judgment hearing. The circuit court's consideration of that evidence was also error. See Fla. R. Civ. P. 1.510(c) ("The movant must serve the motion at least 20 days before the time fixed for the hearing, and must also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court."); Verizzo v. Bank of New York, 28 So.3d 976, 977-78 (Fla. 2d DCA 2010) (reversing summary judgment of foreclosure where plaintiff failed to serve defendant with summary judgment evidence until eleven days before the hearing); Mack v. Commercial Indus. Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989) (holding that moving party's summary judgment exhibits that were not served upon the non-moving party prior to the hearing could not be considered). Accordingly, we must reverse the circuit court's summary judgment.[2]

         Reversed and remanded.

          CASANUEVA and BADALAMENTI, JJ, Concur

---------

Notes:

[1]The mortgage contains a parcel identification number and street address but not a formal legal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.