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Make Sure You Have Addressed All Pending Counterclaims and Affirmative Defenses Prior to Moving for Final Summary Judgment of Foreclosure

Make Sure You Have Addressed All Pending Counterclaims and Affirmative Defenses Prior to Moving for Final Summary Judgment of Foreclosure

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Published by: JimersonCobb on Feb 01, 2013
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Make Sure You have Addressed all Pending Counterclaims and Affirmative Defenses Priorto Moving for Final Summary Judgment of Foreclosure
By: Matthew F. Havice, EsqAfter filing a foreclosure action and receiving a response from the Plaintiff, it is commonto obtain the needed documentation, including supportive affidavits, and move quickly forsummary judgment. However, a recent decision from the Fifth District Court of Appeals hasclarified when summary judgment is available following the filing of an answer with affirmativedefenses and a counterclaim(s) by the defendant.In Sanchez v. Soleil Builders, Inc., 98 So. 3d 251, (Fla. 5th DCA 2012), a contractorbrought an action against a customer asserting claims for breach of contract and for foreclosureon a construction lien. The defendant filed a counterclaim and numerous affirmative defenses.The trial court entered summary judgment for the plaintiff along with a final judgment of foreclosure. The Fifth DCA found that a detailed rendition of the facts was unnecessary butnoted that the construction company filed a three (3) count complaint with Count I to foreclosethe construction lien, Count II as breach of contract and Count III for libel and slander (Count IIIwas later dropped). Id. at 253. The Court noted that the Complaint was met with variousiterations of answers, affirmative defenses and counterclaims culminating in the Third AmendedAnswer with affirmative defenses and remaining counterclaim. Id. The trial court enteredpartial summary judgment in favor of the contractor for the amount owed by Sanchez. Id.Sanchez moved for rehearing noting that she had pending affirmative defenses and counterclaimsthat were not addressed by plaintiff. The court denied the motion for rehearing and thereaftergranted summary judgment on the remaining counterclaims and affirmative defenses, without
comment, apparently relying on the plaintiff’s contention that th
e defenses and counterclaimswere moot following the prior entry of partial summary judgment. Id. Sanchez appealed and the
 
court reversed noting that summary judgment should not enter if defendant has pendingcounterclaims and/or affirmative defenses that have not been factually refuted and/or establishedto be insufficient. Id. at 254.The Court in Sanchez, went discussed the history of summary judgments of foreclosureand noted that it
is well settled Florida law that, “[i]n order to be entitled to su
mmary judgmentas a matter of law, the party seeking summary judgment must not only establish that no genuine
issues of material fact exist as to the party’s claims but must also either factually refute the
affirmative defenses or establish that they are l
egally insufficient.”
Sanchez, 98 So. 3d 251, 254,
citing
Jones v. State ex rel. City of Winter Haven, 870 So.2d 52, 55 (Fla. 2d DCA 2003);
seealso
 
Kimmick v. U.S. Bank Nat’l Ass’n
, 83 So.3d 877, 879 (Fla. 4th DCA 2012). The Courtalso pointed out that,
“the moving party must disprove the affirmative defenses or establish that
they are insufficient as a matter of law. Where the movant merely denies the affirmativedefenses and the affidavit in support of summary judgment only supports the allegations of thecomplaint and does not address the affirmative defenses, the burden of disproving the affirmative
defenses has not been met.”
Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784, 786 (Fla. 5thDCA 2003). As noted above, the Court reversed the granting of the final summary judgment of foreclosure and held that the entry of summary judgment where affirmative defenses are extant iserror. Id. at 787.
See also
, Wendt v. Laske, 760 So.2d 1125 (Fla. 5th DCA 2000) (reversingsummary judgment where affirmative defenses were raised that were not addressed in trial
court’s order); Fla. Dep’t of Agric. V. Go Bungee, Inc.
, 678 So.2d 920, 921 (Fla. 5th DCA 1996)
(holding trial court’s failure to address affirmative defenses before granting summary judgment
was error).

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