Gonzalez v. Chase Home Finance LLC, No. 3D09-2015 (Fla. App. 6/16/2010)
| Decision Date | 16 June 2010 |
| Docket Number | No. 3D09-2015.,3D09-2015. |
| Parties | John F. Gonzalez and Freddy Gonzalez, Appellants, v. Chase Home Finance LLC, Appellee. |
| Court | Florida District Court of Appeals |
Mauricio Garcia, for appellants.
Greenberg Traurig and Michele L. Stocker (Fort Lauderdale) and Elliot B. Kula and Elaine D. Walter, for appellee.
Before SHEPHERD, CORTIÑAS, and SALTER, JJ.
John F. Gonzalez and Freddy Gonzalez appeal a final summary judgment entered against them in a residential mortgage foreclosure action filed by Chase Home Finance, LLC. We affirm the final summary judgment entered against Freddy Gonzalez but reverse and remand the judgment entered against John Gonzalez.
According to the Florida Rules of Civil Procedure, a motion for summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c). The burden is on the moving party to demonstrate that the other party unquestionably cannot prevail. Gomes v. Stevens, 548 So. 2d 1163 (Fla. 2d DCA 1989); Snyder v. Cheezem Dev. Corp., 373 So. 2d 719 (Fla. 2d DCA 1979). The moving party
must show conclusively the absence of any genuine issue of material fact[,] and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla. 1966). A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Shaffran v. Holness, 93 So. 2d 94 (Fla.1957).
Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985); accord Buck v. Hardy, 106 So. 2d 428, 428-29 (Fla. 3d DCA 1958).
In this case, summary judgment was improperly granted against John Gonzalez because Chase did not meet its aforementioned burden. In his affidavit opposing Chase's motion for summary judgment, John Gonzalez stated that his "ownership interest in the property was acquired by virtue of a Warranty Deed dated March 8th, 2006, recorded in the public records of Miami Dade County, Florida, in Book 24849 at page 4143" and that he was "not a mortgagor of the mortgage subject of this foreclosure." Since Chase's complaint admitted that the mortgage was executed on March 15, 2006, if the factual assertions in John Gonzalez's affidavit were proved to be true, they would render his interest in the property superior to Chase's mortgage.
Because "[t]he general rule undoubtedly is that the proper scope of a foreclosure suit is merely to enforce the mortgage lien against the title or interest of the mortgagor and those claiming under him," Brown v. Atlanta Nat'l Bldg. & Loan Ass'n, 35 So. 403, 404 (Fla. 1903) (emphasis added), it follows that "parties claiming title superior to the lien of a mortgage being foreclosed are not proper parties to the foreclosure suit." Hecht v. Wilson, 144 So. 886, 887 (Fla. 1932) (citing Wood v. Franklin Life Ins. Co., 17 F. 2d 80 (5th Cir. 1927)). Furthermore, a tenant in common, such as Freddy Gonzalez, "could convey no greater interest in the property than []he owned, i.e., an undivided one-half interest." Kern v. Weber, 155 So. 2d 619, 620 (Fla. 3d DCA 1963). Therefore ."
Hamilton v. Hughes, 737 So. 2d 1248, 1250 (Fla. 5th DCA 1999). The cotenant "may encumber his own interest but only subject to the interest of his co-tenant." In re Sabin, 57 B.R. 352, 354 (Bankr., S.D. Fla. 1985); see also Black v. Miller, 219 So. 2d 106, 108 (Fla. 3d DCA 1969) ( ). Therefore, on the basis of the foregoing legal principles considered in light of the issues raised by the pleadings and affidavits, it is apparent that Chase was entitled only to enforce and foreclose its mortgage against the title or interest of the mortgagor, Freddy Gonzalez, but not against John Gonzalez.
Chase argues that John Gonzalez's affidavit violates Florida Rule of Civil Procedure 1.510(e), which requires "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit [to] be attached thereto or served therewith." Indeed, the warranty deed is neither attached to the affidavit nor located anywhere in the record. However, the affidavit of a party opposing a summary judgment motion is interpreted by a more lenient standard, as enunciated in Humphrys v. Jarrell, 104 So. 2d 404, 410 (Fla. 2d DCA 1958):
Beyond and above the principles and rules hereinbefore stated, generally the courts hold the moving party for summary judgment or decree to a strict standard and the papers supporting his position are closely scrutinized, while the papers opposing are leniently treated in determining whether the movant has satisfied the burden required of him. Moore's Federal Practice, 2nd ed., Vol. 6, p. 2336 and p. 2339.
Moreover, section 90.202(6), Florida Statutes (2009), provides that a court take judicial notice of the "[r]ecords of any court of this state." Therefore, this Court need not blindly reject John Gonzalez's affidavit; instead, we take judicial notice that his warranty deed is the Miami-Dade County record located at file number 2006 R 918573. This deed supports the affidavit's assertion that John Gonzalez acquired his interest in the property on March 8, 2006, a week before Freddy Gonzalez obtained his mortgage. The county records further show that the record located at file number 2006 R 918574 is Freddy Gonzalez...
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