DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Defendants, XXX and XXX, (collectively and individually referred to as, the “Defendants”), Pro se, file this Response and Memoranda in Opposition to Plaintiff XXX (“Plaintiff”) Motion for Summary Judgment ((the “Motion”).
INTRODUCTION
Defendants are the current occupants of the property in Orange County, Florida, identified as: in Orange County, Florida: 445 S. Deerwood Avenue, Orlando, FL 32825 (the “Property”).
Defendants owned the property through a mortgage with Century Lending Company, which later sold the said mortgage to XXX on or about January 2007. EXHIBIT A.
A foreclosure action was instituted against Defendants in Orange County Case No. 2017- CA-6882, where a final judgment was entered on or about November 7, 2018, against Defendants.
Plaintiff alleges that the Property was sold in the Foreclosure Case and a Certificate of Title was issued on February 4, 2020. However, Defendants fail to acknowledge such sale because it did not pass good title to Plaintiff.
Notably, Defendants allege that said foreclosure was effected fraudulently because the Plaintiff in the aforementioned foreclosure case unlawfully held out as the rightful assignee of the loan from XXX. Upon the Plaintiff’s information and belief, this is far from the truth because his loan was first taken from Century Lending Company which later sold the loan to XXX. EXHIBIT A. Besides, the alleged assignment to the Plaintiff in the foreclosure case was made in violation of Florida Statutes, § 559.715 because no efforts were made to notify Plaintiff that the mortgage had been so assigned.
Accordingly, Defendants maintain that they still hold valid title to the said property because Plaintiff cannot benefit from an illegality.
STANDARD OF REVIEW
Pursuant to Florida Rule of Civil Procedure 1.510, Summary Judgment may only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); Major Leagues Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001). Thus, “summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Craven v. TRG Boynton Beach, Ltd., 925 So. 2d 476, 479 (Fla. 4th DCA 2006).
“Under the Florida State Court procedure, 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, so long as the “slightest doubt” is raised”. West’s Florida Practice Series, 4 Fla. Prac., Civil Procedure R. 1.510(2008-2009 ed.).
ARGUMENT
- A DISPUTE EXISTS ON A MATERIAL FACT REGARDING GOOD TITLE TO THE PROPERTY
The Court may only grant Summary Judgment if the Plaintiff’s case shows that there is no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Major Leagues Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001). It follows; the prerequisite to determining entitlement to summary judgment as a matter of law is the absence of genuine issues of material fact. Foots tar Corp. v. Doe, 932 So. 2d 1272, 1274 (Fla. 2d DCA 2006). This means that the facts must be wholly undisputable, for the Court to grant Plaintiff’s Motion for Summary Judgment. Craven v. TRG Boynton Beach, Ltd., 925 So. 2d 476, 479 (Fla. 4th DCA 2006).
Summary judgment should be avoided if there is any unsettled issue with the evidence submitted by Plaintiff. Bratt ex rel. Bratt v. Laskas, 845 So.2d 964, 966 (Fla. 4th
DCA 2003) (“All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available”) (citation omitted).
A fact is material it is essential to the resolution of legal questions in the case, and it affects the outcome of the proceedings. Anderson v. Liberty a Lobby, Inc., 477 U.S. 242, 247-48 (1986) (interpreting F.R.C.P. 56(c), which contains the same standard as the cited Florida rule of civil procedure). Also, a fact is “genuine” if a rational trier of fact could find in favour of the non-moving party on the evidence presented. Anderson, 477 U.S. at 248. In the instant case, the dispute exists regarding the title to the said property. Plaintiff has failed to sufficiently fulfill the burden of demonstrating they have good title, in light of Plaintiff’s circumstances. As already alleged above, there remains a doubt as to the validity of title to the property because said title was obtained fraudulently after Defendants’ mortgage was sold in contravention of Florida Statutes, § 559.715.
- SUMMARY JUDGMENT IS IMPROPER AT THIS TIME DUE TO THE DISCOVERY REMAINING TO BE TAKEN
Summary judgment is improper at this time because the facts are not sufficiently developed for this Court to determine whether genuine issues of material fact exist. As set forth above, there still remains an uncertainty over the title to the property, information which unless discovered will impact Defendants’ claims and defences.
Defendants are entitled to conduct discovery as to the nature of the above fact, and others, which prevents this Court from determining whether genuine issues of material fact exist at this juncture. Osorto v. Deutsche Bank Nat. Trust Co., 88 So. 3d 261, 263 (Fla. 4th DCA 2012), reh’g denied (June 5, 2012) (“Therefore, the trial court erred in its entry of its order because summary judgment is considered premature until all discovery which may yield genuine issues of material fact is complete”); Payne v. Cudjoe Gardens Prop. Owners Ass’n, Inc., 837 So. 2d 458, 461 (Fla. 3d DCA 2002) (“Where discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist. Thus, where discovery is still pending, the entry of Summary Judgment is premature”) (internal citations omitted).
Summary judgment is only appropriate if after discovery and the filing of affidavits there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c).
CONCLUSION
For the reasons stated above, Plaintiffs respectfully request that this Court deny Plaintiff’s motion for summary judgment.
DATED:
Respectfully Submitted
_________________________
XXX
Defendant, pro se
XX
XXX
_________________________
Angie Rosa
Defendant, pro se
XXX
XXX
CERTIFICATE OF SERVICE
I, the undersigned, hereby certifies that on [ENTER DATE], via United States Postal Service, First Class, postage pre-paid, that a true and complete copy of the foregoing Instrument was mailed to:
_________________________
Persio Liriano
Defendant, pro se
XXX
XXX
_________________________
Angie Rosa
Defendant, pro se
XXX
ADDENDUM
EXHIBIT A
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.
