Cagwin v. Thrifty Rents, Inc.
219 So. 3d 1003
| Fla. Dist. Ct. App. | 2017Background
- Foreclosure action filed May 28, 2014 on promissory note/mortgage, alleging default since Dec 2011.
- Borrowers argued $100,000 credit had been improperly applied and sought credit/offset.
- Trial court granted final judgment of foreclosure on summary judgment with no transcript available.
- Cagwin filed motion for rehearing; rehearing denied without a hearing.
- Appellate court held the trial court abused its discretion by denying rehearing and erred in relying on a deficient affidavit at summary judgment, remanding for further proceedings.
- On rehearing, Cagwin attached a properly sworn affidavit alleging misapplication of the $100,000 credit; court treated this as creating a genuine issue of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper given disputed credit application | Cagwin alleged the $100,000 credit was not properly applied | Thrifty Rents asserted affidavit established amounts due | No; material fact dispute remained due to misapplied credit, warranting reversal |
| Whether the affidavit deficiency was cured on rehearing | Sworn affidavit attached to rehearing cured deficiency | Affidavit deficiency remained unanswered at summary judgment | Yes; amended sworn affidavit created a genuine issue of material fact |
| Whether denial of rehearing was an abuse of discretion | Rehearing presented new facts creating triable issues | Denied based on record at time of initial hearing | Yes; court abused discretion by denying rehearing and should remand for further proceedings |
Key Cases Cited
- Fatherly v. California Federal Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997) (affirmative defenses and reconsideration on rehearing may preclude summary judgment)
- Zarate v. Deutsche Bank Nat'l Tr. Co., 81 So. 3d 556 (Fla. 3d DCA 2012) (no transcript precludes review of motions and affidavits)
- Bair v. City of Clearwater, 196 So. 3d 577 (Fla. 2d DCA 2016) (burden shifts to nonmovant to raise material facts after prima facie case)
- Pina v. Simon-Pina, 544 So. 2d 1161 (Fla. 5th DCA 1989) (distinction between affidavit and acknowledgment; substantial compliance can suffice)
- Gaynor Hill Enters., Inc. v. Allan Enters., LLC, 113 So. 3d 933 (Fla. 5th DCA 2013) (notary language insufficient if rest of document shows it's an affidavit)
- Bell v. Renar Dev. Co., 811 So. 2d 780 (Fla. 4th DCA 2002) (affidavit sufficiency despite use of 'acknowledged')
- Petrucci v. Brinson, 179 So. 3d 398 (Fla. 1st DCA 2015) (rehearing affidavits may raise genuine issues of material fact)