June 26, 2017

HOT OFF THE PRESS! Florida’s 3rd DCA overturns Summary Judgment against Homeowner

Here you go folks! One more case where the Florida District Court of Appeals is sending a strong message to the lower courts around Florida that they cannot just simply ignore well-established law and the Florida Rules of Civil Procedure just because it’s a “Foreclosure Case” and the judges are overwhelmed with them. They simply cannot continue to ignore the basic elements of due process and rules of civil procedure. The very fact that the majority of foreclosure cases end in a summary judgment should draw the ire and attention of every Florida legislator, politician, and the Florida Supreme Court. In no other area of law do the cases end in Summary Judgment with this type of frequency or percentage.

To put it simply: The vast majority of Florida Judges are applying completely different rules of evidence, procedure and ethics to Foreclosure Cases as opposed to any and all other types of cases. Combined with the obvious facts that systemic fraud is running amok in the system and the fact that the Florida Attorney General’s office and the FBI are investigating the firms that handle the large majority of foreclosure cases statewide, there should be an immediate reversal in what is clearly an unspoken mandate by the Administrative Judges in every FL Judicial Circuit – which, obviously, is to cram these foreclosure cases through as fast as their rubber stamp and gavel can be applied.

I suggest they start paying attention to the bullhorn in their ears… enjoy the case below (if you’re a homeowner or advocate thereof).

35 Fla. L. Weekly D2106b

Mortgage foreclosure — Affirmative defenses — Trial court erred in striking mortgagor’s affirmative defenses on ground that they were not specific or supported

WASHINGTON L. SANCHEZ, Appellant, vs. LASALLE BANK NATIONAL ASSOCIATION, ETC., Appellee. 3rd District. Case No. 3D09-2095. L.T. Case No. 09-4074. Opinion filed September 22, 2010. An Appeal from the Circuit Court for Miami-Dade County, Mark King Leban, Judge. Counsel: John H. Ruiz and Hector A. PeÑa, for appellant. Butler & Hosch, Beth A. Norrow, and Thomasina Moore, for appellee.

(Before GERSTEN, SHEPHERD, and LAGOA, JJ.)

(PER CURIAM.) Washington Sanchez (“Sanchez”) appeals from a summary final judgment for foreclosure in favor of LaSalle Bank National Association, as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust (“LaSalle”). We reverse.

Sanchez defaulted under the terms of his mortgage, and LaSalle filed suit for mortgage foreclosure. In response, Sanchez filed an answer and affirmative defenses. Among other things, Sanchez alleged that LaSalle did not comply with the federal Truth-in-Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.

Thereafter, LaSalle responded to the affirmative defenses, and moved for summary judgment. Shortly before the hearing on the motion for summary judgment, Sanchez moved to add additional affirmative defenses. The trial court granted Sanchez’ motion, but then sua sponte struck all of Sanchez’ affirmative defenses. The trial court also granted LaSalle’s motion for summary judgment.

On appeal, Sanchez asserts that the trial court erred in striking his affirmative defenses and entering summary judgment. LaSalle contends the trial court properly struck the affirmative defenses because they were not specific or supported. We agree with Sanchez.

Generally, the striking of pleadings is not favored. See, e.g., Menke v. Southland Specialties Corp., 637 So. 2d 285 (Fla. 2d DCA 1994); Costa Bell Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984). Florida Rules of Civil Procedure authorize a trial court sua sponte to strike a pleading which is “redundant, immaterial, impertinent or scandalous,” and, upon a party’s motion, a pleading which is sham. Fla. R. Civ. P. 1.140(f), 1.150. A trial court, however, should not strike a pleading sua sponte on the ground that it is legally insufficient, or because the party subsequently may not be able to prove his or her allegations. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005 (Fla. 4th DCA 1977).

Here, the trial court, on its own motion, struck Sanchez’ affirmative defenses without finding them redundant, immaterial, impertinent, scandalous or a sham. Apparently, the trial court deemed the defenses to be lacking in specificity and support. Neither of these grounds warrants the sua sponte dismissal of Sanchez’ affirmative defenses.

Accordingly, we reverse the final summary judgment, and remand the cause for further proceedings.

Reversed and remanded.

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