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MortgagePoint September 2023

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Page 33 of 99

MortgagePoint » Your Trusted Source for Mortgage Banking and Servicing News 32 September 2023 F E A T U R E SUCCESS FOR SERVICERS: FEDERAL SUMMARY JUDGMENT STANDARD IN FLORIDA Attorney R. Keith Ustler explains how a new Florida summary judgment standard makes a summary judgment motion an essential step in any litigation. B y R . K E I T H U S T L E R E ffective May 1, 2021, the Florida Supreme Court adjusted the way summary judgment matters are addressed by Florida Courts and installed federal summary judgment standards as law in the State. The Florida Su- preme Court amended the language within Fla. R. Civ. P. 1.510 (the Florida Rule governing summary judgments) to "largely adopt" the text of Fed. R. Civ. P 56 as a replacement. The Court reasoned that doing so "makes it more likely that Florida's adoption of the federal summary judgment standard will take root." Key changes from the shift include: » There is no longer a requirement that the moving party negate the opponent's claims, the movant may now simply point to an absence of evidence to support an opponent's claims. This update makes it easier for the movant to be successful and the motion to be more concise. » The timing for summary judgment mo- tions and the filing of counter-evidence has been elongated and now a fully sup- ported motion must be filed 40 days prior to a hearing (up from 20), and any reply or counter-evidence must be filed no later than 20 days prior to a hearing (up from two). This allows for less ambush tactics by the non-movant and for the Court to have sufficient time to read the materials in advance of the hearing. » A "genuine issue of material fact" is rein- terpreted to mean that a party opposing summary judgment must do more than simply show there is some doubt as to the material facts. Essentially, under the new rule, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. It is no longer ac- ceptable to maintain that the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment. » The Court shall state on the record the reasons for granting or denying a summary judgment motion (meaning appeals will theoretically be more specific). The Court must state the reasons for its decision with enough specificity to provide useful guid- ance and allow for appellate review. » The standard for summary judgment is now the same as the standard for a di- rected verdict, (i.e., whether the evidence presents a sufficient disagreement to require submission to a finder of fact or is so one-sided that one party must prevail as a matter of law). Especially interesting is, according to the Supreme Court Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020), the trial court should give the parties a reasonable opportunity to file a renewed motion under the new rule even if a summary judgment motion made under the old rule was previously denied. This means parties to very old cases would have another bite at the proverbial apple before proceeding to the cost and risk of trial. In making this sweeping change, the Florida Supreme Court indicated its goals were to improve the fairness and efficiency of Florida's civil justice system, relieve parties from the expense and burden of meritless litigation, and save juries for cases where there are real factual disputes that need resolution. R . K E I T H U S T L E R is a Litigation Associate with McCalla Raymer Leibert Pierce, LLC. Ustler has a broad area of practice, representing secured creditors and mortgage servicers in cases pending throughout Florida. He manages a wide range of civil litigation matters, including contested real property foreclosures, commercial foreclosures, code violation lien remediation, tax deed sales and redemptions, quiet title, disputes with Homeowner and Condominium Associations, Condominium Terminations, eminent domain, and collections.

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