Erin M. Berger, of Florida Default Law Group, P.L., Tampa, for Appellee.
The Gicks appeal from a final summary judgment entered in this
mortgage foreclosure proceeding. We reverse. Wells Fargo Bank
filed its motion for summary judgment before the Gicks answered
the complaint, but failed to meet its burden to conclusively establish
that the Gicks could not plead or otherwise raise a genuine issue of
In May 2008, Wells Fargo filed an unverified complaint alleging
that the Gicks had defaulted on their mortgage by failing to make
the monthly payment due on November 1, 2007. In response,
the Gicks propounded discovery requests upon Wells Fargo and
successfully sought an extension of time in which to answer the
complaint. After responding to the Gicks' discovery requests, Wells
Fargo filed a motion for summary judgment in June 2009, alleging
generally that the Gicks had defaulted on the mortgage and that there
were no genuine issues as to any material facts. A supporting affidavit
executed by David Perez, an assistant vice president for the servicer
of the loan, was attached to the motion for summary judgment.
In a conclusory statement, Mr. Perez set forth the sums of money
due and owing on the mortgage. However, Mr. Perez' affidavit did
not reference the alleged non-payment in November 2007, and indeed,
did not include any averment that the Gicks had defaulted on the
Subsequent to the filing of the motion for summary judgment, the
Gicks filed a motion to dismiss, asserting that the complaint failed to
state a cause of action. After a hearing, the trial court granted Wells
Fargo's motion and entered a final summary judgment of
Florida Rule of Civil Procedure 1.510(a)2 permits a plaintiff to
move for summary judgment twenty days after suit has been filed,
even if the defendant has not filed an answer. Brakefield v.
CIT Group/Consumer Fin., Inc., 787 So.2d 115 (Fla. 2d DCA 2001).
However, the burden for such a movant is extremely heavy in that the
movant must demonstrate conclusively that the defendant cannot
plead or otherwise raise a genuine issue of material fact.
Greene v. Lifestyle Builders of Orlando, Inc., 985 So.2d 588
(Fla. 5th DCA 2008); see Getman v. Tracey Constr., Inc.,
62 So.3d 1289 (Fla. 2d DCA 2011); Brakefield; Beach Higher
Power Corp. v. Granados, 717 So.2d 563 (Fla. 3d DCA 1998).
In the instant case, the Gicks argue that there were
several potential defenses that could have been pled which were not
negated by the record. We find it necessary to address only one.
Because of the aforedescribed deficiencies in Mr. Perez' affidavit,
the record was insufficient to negate an answer alleging that
the Gicks had made their payments. See, e.g., Brakefield
(error to grant motion for summary judgment in mortgage
foreclosure action where motion was filed prior to defendant's
answer and record did not contain affidavit or other
documentation demonstrating conclusively that defendant
could not raise any genuine issue of material fact).
REVERSED AND REMANDED.