DS News

MortgagePoint September 2023

DSNews delivers stories, ideas, links, companies, people, events, and videos impacting the mortgage default servicing industry.

Issue link: http://digital.dsnews.com/i/1507718

Contents of this Issue


Page 35 of 99

MortgagePoint » Your Trusted Source for Mortgage Banking and Servicing News 34 September 2023 F E A T U R E The wholesale amendment of the Rule to mirror the text of Rule 56 also allows practitioners to use case law interpreting the federal rule and to cite federal cases in their state court motions. See, Fla. Hwy. Patrol v. Jackson, 288 So. 3d 1179 1183 (Fla. 2020). The impact of the reworking of Florida's summary judgment framework has been profound. In many instances, we find mo- tions go without a response and contrary evidence being filed. The amended rule says the opponent "must" file a response. Failure of the opponent to file a response permits the court to consider the facts within the mov- ant's motion as "undisputed for purposes of the motion" [Lloyd S. Meisels, P.A. v. Dobrofky, 341 So. 3d 1131, 1136 (Fla. 4th DCA, 2022)]. Es- sentially, the motion for summary judgment becomes uncontested, and the Court should enter judgment. The level of evidence now required is also of great significance. It is no longer sufficient for a non-movant to file a weak, unsupported response or a vague counter-affidavit. One pitfall of the new rule is the require- ment of the court to make express findings on the record in support of its ruling either granting or denying summary judgment. Many non-movants were successful on appeal in hav- ing summary judgments overturned because the Court failed to comply with the new rule. This situation may now be resolved thanks to another Rules update by the Florida Supreme Court, this time to Rule 1.530, which governs motions for rehearing and the preservation of matters for appeal. The Supreme Court's amendment to Rule 1.530 would apparently require the non-movant to file a motion for re- hearing as to the lack of support and the failure to file said motion would result in a waiver of the issue on appeal. Several recent cases have keyed on this update and particular ambiguity. One such case is Brown v. Regan, No. 4D22-2353, 2023 WL 4094879 (Fla. 4th DCA, June 21, 2023), which overturned the trial court's entry of summary judgment because: » The order only vaguely described the factual history of the underlying theft and did not recite the legal background "with enough specificity" for appellate review; and » The motion for summary judgment was not properly supported by evidence in the record. The Fourth DCA also decided Tucker v. LNV Corp., No. 4D22-984, 2023 WL 3606462 (Fla. 4th DCA, May 24, 2023) in roughly the same timeframe wherein the Appellate Court upheld a summary judgment entered by the trial court despite the fact that the final order was allegedly vague when the issue was not preserved by filing a timely 1.530 motion for rehearing and there was no transcript presented to the appellate court. The Court reasoned the biggest impediment for meaningful review was not the absence of findings in the final order but the lack of a transcript which may have allowed the Court to determine whether the trial court satisfied its obligation via an oral pronouncement. In short, the new Florida summary judg- ment standard makes a summary judgment motion an essential step in any litigation. Not only is there an excellent chance the motion will be granted, thereby ending the litigation early, but it also forces the litigants to set out the theories of the case well in advance of trial. This early disclosure, in the event the motion is unsuccessful, helps avoid ambush trial and aid in meaningful settlement discus- sion in cases which contain actual risk. The effective use, careful framing, and argument of the new summary judgment standard will ultimately provide clients with better, more consistent results, possibly for a cheaper price. The impact of the reworking of Florida's summary judgment framework has been profound. In many instances, we find motions go without a response and contrary evidence being filed.

Articles in this issue

Archives of this issue

view archives of DS News - MortgagePoint September 2023