Carapezza v. Pate, 61-795

Decision Date17 July 1962
Docket NumberNo. 61-795,61-795
PartiesAnne H. CARAPEZZA, Appellant, v. Doris PATE and Orville H. Schwartz, Appellees.
CourtFlorida District Court of Appeals

Edgar Lewis, Miami, for appellant.

H. I. Fischbach, Miami, for appellees.

Before CARROLL, BARKDULL and HENDRY, JJ.

HENDRY, Judge.

Appellant was defendant below in a suit brought by appellee, plaintiff below to foreclose a mortgage which the defendant had executed to Shinn Construction Company. The plaintiff alleged in her complaint, inter alia, that she was the owner and holder of the mortgage and note. The defendant filed her answer denying, inter alia, that the plaintiff was the owner or holder of the said mortgage and note. Subsequent to the filing of the answer, the plaintiff filed a motion to strike the answer and for the entry of summary final decree under rule 1.14, Florida Rules of Civil Procedure, 30 F.S.A. 1 The motion was not sworn to nor did it set forth any facts on which the movant relied. There was an affidavit filed with plaintiff's motion which dealt with matters other than ownership and possession of the mortgage and note.

The chancellor heard the motion and entered a summary final decree striking the answer as sham and holding that the material allegations of the complaint had been established.

The defendant has assigned several grounds for reversible error. The principal grounds relied upon are that: (1) the unsworn motion to strike as sham under Rule 1.14, was not sufficient to support the striking of the defendant's answer as sham in that it was not sworn to and did not set forth fully the facts upon which the movant relied as prescribed by subsection (b) of the rule; (2) there was no proof to show that the party bringing the action and seeking foreclosure was the owner of the mortgage and note. We find that there is merit in appellant's contention as to both of these points. The rule under which the motion to strike was made clearly states that the motion shall be sworn to and shall set forth fully the facts on which the movant relies. The record reveals that the plaintiff failed to comply with either of these requirements and the record is void of anything that would relieve the plaintiff from strictly following the procedure set forth in the rule. See Dezen v. Slatcoff, Fla.1953, 65 So.2d 484. 2

Appellant also argues that there was no evidence to show that the plaintiff was the owner of the note and mortgage being sued upon. The defendant's answer denied that the plaintiff was the owner and holder of the note and mortgage. Ownership having been put in issue by the answer it followed that ownership of the note and mortgage became one of the issues in the case and was a material fact to be proved by the plaintiff. The record is without any evidence...

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6 cases
  • Gee v. U.S. Bank Nat'l Ass'n
    • United States
    • Court of Appeal of Florida (US)
    • September 30, 2011
    ...ownership became an issue that U.S. Bank, as the plaintiff, was required to prove. See Lizio, 36 So.3d at 929; Carapezza v. Pate, 143 So.2d 346, 347 (Fla. 3d DCA 1962). As U.S. Bank failed to offer any proof of American Home's authority to assign the Mortgage, we conclude that it failed to ......
  • Brooks v. City of Miami
    • United States
    • Court of Appeal of Florida (US)
    • March 10, 1964
    ...that the pleading was a sham. Guaranty Life Ins. Co. of Florida v. Hall Bros. Press, Inc., 138 Fla. 176, 189 So. 243; Carapezza v. Pate, Fla.App.1962, 143 So.2d 346. Nevertheless, we do not feel that this appeal should be decided on that basis because each party has in good faith presented ......
  • Lindsey v. Wells Fargo Bank, N.A.
    • United States
    • Court of Appeal of Florida (US)
    • February 27, 2013
    ...has an ownership interest in the mortgage, the issue of ownership becomes an issue the plaintiff must prove.”) (citing Carapezza v. Pate, 143 So.2d 346, 347 (Fla. 3d DCA 1962)). 2. The judgment was entered three years after the complaint was filed (and 39 months after Lindsey last made a pa......
  • Nemec v. Bank of N.Y. Mellon, 13-cv-593-wmc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • March 7, 2014
    ...an ownership interest in the mortgage, the issue of ownership becomes an issue the plaintiff must prove." Id. (citing Carapezza v. Pate, 143 So.2d 346, 347 (Fla. Dist. Ct. App. 1962)). Thus, for the Florida circuit court to enter a judgment of foreclosure in favor of Mellon, it must necessa......
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