The plaintiff in the foreclosure process has the burden of proving its right to foreclose the defendant’s property by a preponderance of the evidence. The defendant has the burden to prove the affirmative defenses raised in the defendant’s answer. Sometime after the defendant files his answer and affirmative defenses, the plaintiff files a motion for summary judgment in order to obtain a final judgment and receive a sale date. This motion expedites the foreclosure process and avoids the delay and costs of a formal trial. When ruling on a motion for summary judgment, the court may enter summary judgment only if the plaintiff shows that there are no genuine issues of material fact. This is a difficult burden for the plaintiff.
To determine whether a genuine issue of material fact exists, the court must view every possible inference in favor of the non-moving party. Maynard v. Household Finance Corp. III, 861 So.2d 1204 (Fla. 2d DCA 2003). The non-moving party is generally the homeowner or defendant. The moving party, who is generally the lender or plaintiff, bears the burden of proving the non-existence of genuine issues of material fact. Furthermore, the burden of proving that such issues exist does not shift to the non-moving party until the movant has successfully met his burden. Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138 (Fla. 2d DCA 2000).
The Third District Court of Appeals of Florida held that “the party moving for summary judgment must factually refute or disprove the affirmative defenses raised, or establish that the defenses are insufficient as a matter of law.” Leal v. Deutsche Bank National Trust Company, 21 So.3d 907, 909 (Fla. 3d DCA 2009). The plaintiff must either factually refute the alleged affirmative defenses to foreclosure or establish that they are legally insufficient to defeat summary judgment. Knight Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995). In a recent decision from the Fourth District Court of Appeals (DCA) of Florida, the Fourth DCA held that “when a party raises affirmative defenses, a summary judgment should not be granted where there are issues of fact raised by affirmative defenses which have not been effectively challenged and refuted factually.” Alejandre v. Deutsche Bank Trust Co., 44 So. 3d 1288, 1289 (Fla. 4th DCA 2010).
In a mortgage foreclosure action, if the record reflects the existence of any issue of material fact, or the possibility of an issue of material fact, or if the record raises even the slightest doubt that an issue of material fact might exist, summary judgment is improper. Pennco, Inc. v. Meritor Savings F.A., 617 So.2d 739 (Fla. 2nd DCA 1993). According to Consortion Trading International, Ltd. v. Lowrance, 682 So.2d 221 (Fla. 3rd DCA 1996), final summary judgment was not appropriate where the homeowner had properly pled affirmative defenses to the foreclosure action that sounded in waiver, estoppel, and bad faith; such defenses raised genuine issues of material fact and were not barred by statute of frauds.
According to Knight Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995), before the plaintiff was entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses to the foreclosure or establish that they are legally insufficient to defeat summary judgment. Furthermore, the plaintiff failed to prove the absence of genuine issues of material fact as to the defendant’s affirmative defenses of tortious interference and unclean hands, so that summary judgment of foreclosure was inappropriate.
As a foreclosure defense attorney, you must oppose the motion for summary judgment with appropriate affidavits in opposition and memorandums of law in opposition to the summary judgment. The affidavits and memorandums of law must be filed within certain very specific time limits that are established in Fla.R. Civ .P. 1.510. Failing to file timely affidavits and memorandums of law in opposition to the summary judgment makes it very difficult to properly defend the summary judgment.
Even if the plaintiff’s motion for summary judgment is granted, there are still several options left to defend a foreclosure action. At this stage of the foreclosure process, homeowners can file a motion for rehearing, asking the court to reconsider the ruling made on the motion for summary judgment and hold another hearing on that topic. Defendants can also file an appeal of either the entry of the summary judgment or the motion for rehearing. Defendants seeking a loan modification or short sale are often able to pursue these options during an appeal as well.
During the foreclosure process, you may request mediation with a neutral third party or file a motion for mediation and set it for a hearing in front of the judge. Usually, the court will order the defendant and the plaintiff to meet at a mediation setting with a mediator in an effort to work out a resolution to the foreclosure action. Generally, most judges will not allow a foreclosure case to go to trial without first having the parties participate in a mediation.
