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

By: Matthew F. Havice, Esq

After filing a foreclosure action and receiving a response from the Plaintiff, it is common to obtain the needed documentation, including supportive affidavits, and move quickly for summary judgment.  However, a recent decision from the Fifth District Court of Appeals has clarified when summary judgment is available following the filing of an answer with affirmative defenses and a counterclaim(s) by the defendant.

In Sanchez v. Soleil Builders, Inc., 98 So. 3d 251, (Fla. 5th DCA 2012), a contractor brought an action against a customer asserting claims for breach of contract and for foreclosure on 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 but noted that the construction company filed a three (3) count complaint with Count I to foreclose the construction lien, Count II as breach of contract and Count III for libel and slander (Count III was later dropped).  Id. at 253.  The Court noted that the Complaint was met with various iterations of answers, affirmative defenses and counterclaims culminating in the Third Amended Answer with affirmative defenses and remaining counterclaim.  Id.  The trial court entered partial 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 counterclaims that were not addressed by plaintiff.  The court denied the motion for rehearing and thereafter granted summary judgment on the remaining counterclaims and affirmative defenses, without comment, apparently relying on the plaintiff’s contention that the defenses and counterclaims were 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 pending counterclaims and/or affirmative defenses that have not been factually refuted and/or established to be insufficient.  Id. at 254.

The Court in Sanchez, went discussed the history of summary judgments of foreclosure and noted that it is well settled Florida law that, “[i]n order to be entitled to summary judgment as 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 legally 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); see also Kimmick v. U.S. Bank Nat’l Ass’n, 83 So.3d 877, 879 (Fla. 4th DCA 2012).  The Court also 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 affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint 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. 5th DCA 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 is error.  Id. at 787. See also, Wendt v. Laske, 760 So.2d 1125 (Fla. 5th DCA 2000) (reversing summary 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).

Accordingly, after receiving the answer to the foreclosure complaint, move quickly to strike the raised affirmative defenses.  Any affirmative defenses that are not struck need to be factually disproved through record evidence and affidavit.  Finally, any counterclaim must be dismissed prior to moving for summary judgment.  By clearing all affirmative defenses and any pending counterclaims, your path to obtaining a final summary judgment of foreclosure and forcing a judicial sale of the subject property increases exponentially.

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