The Constraints on Bank at a Motion for Summary Judgment
In Gennifer Gee v. U.S. Bank National Association, 36 Fla. L. Weekly D 2159 (Fla. 5th DCA 2011), a recent case decided by the Fifth District Court of Appeals, the Court reiterates the standard and burdens the Bank must meet when it argues a Motion for Summary Judgment. In an excerpt from the decision, the Court states:
A motion for summary judgment must “state with particularity the grounds upon which it is based and the substantial matter of law to be argued….”Fla. R. Civ. P. 1.510(c). The burden to conclusively establish the nonexistence of a disputed issue of material fact and entitlement to judgment as a matter of law rests squarely with the movant. See Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966): Bloch v. Berkshire Ins. Co., 585 So. 2d 1137, 1138 (Fla. 3d DCA 1991). The purpose of this rule is “to prevent ‘ambush’ by allowing the non moving party to be prepared for the issues that will be argued at the summary judgment hearing.” City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th DCA 1995). “It is reversible error to enter summary judgment on a ground not raised with particularity in the motion.” Williams v. Bank of Am. Corp., 927 So. 2d 1091, 1093 (Fla. 4th DCA 2006).
As is so often the case, the Bank’s attorney will regularly rely on oral argument to win a Motion for Summary Judgment, leaving any deficiencies in the actual written motion out of the picture. If not represented by counsel, this tactic rarely fails. The Court in Gee, however, drives home the rule that if there remain material issues in the case not specifically addressed in the written motion, the Bank’s motion should be denied, despite those additional arguments the Bank makes at the hearing. The key is in knowing which issues the Bank has omitted in its motion.
This blog was written by Attorney Branden Henderson of The Dellutri Law Group, P.A. Mr. Henderson defends homeowner in the foreclosure process and in the Bankruptcy Court.
