U.S. Bank N.A. v. Holbrook
Decision Date | 15 September 2017 |
Docket Number | Case No. 2D16-3286. |
Citation | 226 So.3d 363 |
Parties | 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. |
Court | Florida District Court of Appeals |
Allison Morat of Pearson Bitman LLP, Maitland, for Appellant.
Jan T. Govan of Govan Law Group, P.A., Clearwater, for Appellee.
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).
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) (); Colby v. Ellis, 562 So.2d 356, 357 (Fla. 2d DCA 1990) (); Settecasi v. Bd. of Pub. Instruction of Pinellas Cty., 156 So.2d 652, 654 (Fla. 2d DCA 1963) (). 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) (); Verizzo v. Bank of New York, 28 So.3d 976, 977–78 (Fla. 2d DCA 2010) ( ); Mack v. Commercial Indus. Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989) ( ). Accordingly, we must reverse the circuit court's summary judgment.2
Reversed and remanded.
1 The mortgage contains a parcel identification number and street address but not a formal legal description of the property.
2 Although these procedural errors necessitate reversal, we would note, for the benefit of the circuit court on remand, that U.S. Bank's foreclosure of this mortgage may not necessarily depend upon reforming it, as this instrument appears to contain a valid street address and parcel identification number. Cf. Maynard v. Miller, 132 Fla. 269, 182 So. 220, 221 (1938) ...
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...in light of all facts and circumstances referred to in the instrument, a surveyor could locate the land." U.S. Bank N.A. v. Holbrook, 226 So. 3d 363, 364 n.2 (Fla. 2d DCA 2017) (quoting Mendelson v. Great W. Bank, F.S.B., 712 So. 2d 1194, 1196 (Fla. 2d DCA 1998) ); accord Mitchell v. Thomas......
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...or by e-mail the same as summary judgment evidence that is "delivered," among other things.); see United States Bank v. Holbrook, 226 So. 3d 363, 364 (Fla. 2d DCA 2017) (circuit court's consideration of evidence submitted for the first time at the summary judgment hearing was an error).[69]......