IN THE CIRCUIT COURT THE
FOURTH JUDICIAL IRCUIT, IN AND
FOR XYZ COUNTY, FLORIDA
XYZ BANK OF FLORIDA. N.A.
P L; ML; HOMEOWNERS ASSOCIATION, Florida corporation; ANY UNKNOWN TENANTS IN PARTIES IN POSSESION,
MOTION TO SET ASIDE/ VACATE FINAL SUMMARY JUDGMENT
Defendant, ML, by and through herself as pro se representative, files this motion and states:
- This motion for reconsideration is filed pursuant to Rule 1.540, Florida Rules of Civil Procedure. The particular grounds for defendant’s Motion to Vacate Summary Judgment set forth below:
- 2. All parties in this case were ordered to appear at a Hearing on July 9, 2013, at 9:00 am in the Chambers of Presiding Senior Judge MW, at the _____l County Courthouse, ______ Street, in Courtroom 609, ________, Florida ____, in order that the following Motion be heard: Plaintiff’s Motion for Summary Judgment and Taxation of Attorney’s Fees and Costs
- Defendant appeared at that hearing and went before Judge Weatherby at approximately 10:00 a.m. However, neither opposing counsel or a representative for the Plaintiff appeared. On coming forward to the podium, the Judge asked which case it was. I, the Defendant, gave the papers of notice of hearing to a clerk who passed them to the Judge. The Judge looked at the papers then asked another clerk about the status of the case and hearing. The clerk who had the records looked through them then stated the hearing had been rescheduled. The Judge apologized for the fact that Defendant was not informed that the hearing was rescheduled. He also said that someone on the other side, perhaps a Bank Officer must not have been able to attend. Defendant was instructed by the Judge not to do anything, that the hearing was rescheduled and Dedfendant would be informed of the time new hearing.
- On Thursday, July 11, 2013, by US Mail Defendant received a notice that the Judge had granted the Motion for Final Summary Judgment, as well as ordered the property in question sold at auction on August 27, 2013, without having conducted the aforementioned final hearing, and contrary to the specific instructions to defendant on the day of what was to be the Final Hearing.
- Defendant was prepared to argue the case but was not afforded the opportunity. DUE PROCESS statement
NOTES:THIS IS EXTRA STUFF STILL WORKING ON:MAY NOT BE RELEVANt
- In exhibit “C” a charge is listed for “preparation for and appearance at hearing for Motion for Summary Judgment”, however neither counsel nor any representative appeared at that hearing, therefore a charge for such time is unjustified.
- The defendant is has made a genuine effort to negotiate bringing the mortgage current, and in fact had an agreement in place as of March 2013. As a part of that agreement, $15,000 in back taxes were paid and the taxes were made current.
- Next the back paymenyts were to be made current, and a private d loan had been secured to .
- Additionaly, genuine material issues of fact exist, in the affidavit
- Contradictions exist within the Motion for Summary Final Judgement, including:
STANDARD OF REVIEW
7. Rather than constituting a motion for rehearing under Fla. R. Civ. Pro. 1.530, a motion
directed to a nonfinal order is termed a "Motion for Reconsideration" based upon the trial court's
inherent authority to reconsider and alter or retract orders prior to the entry of final judgment.
See Bettez v. City ofMiami, 510 So. 2d 1242, 1242-43 (So. 3d DCA 1987).
8. An order merely granting summary judgment is not a final judgment; rather, it is a
nonfinalorder. See e.g. White Palms of Palm Beach, Inc. v. Fox, 525 So. 2d 518, 519 (Fla. 4th
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION
I. The Court incorrectly granted Summary Judgment in favor of the Plaintiff
In error due to a clerical oversight. Additionally, and where genuine issues of material fact exist which were timely raised and objected to by the Defendant
Under Florida law, summary judgment is proper if, and only if, based on an examination
of evidence, no genuine issue of material fact exists and the movant is entitled to judgment as a
matter of law. See The Florida Bar v. Green, 926 So. 2d 1195, 1200 (Fla. 2006); Volusia County:
v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
10. Furthermore, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, a Court may
grant summary judgment if, and only 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 fact and that the moving party is entitled to a judgment as a matter of law." Fla.
R. Civ. P. 1.510(c).
11. In summary judgment proceedings, the Court must take all the facts that the non-movant
states as true and must draw all reasonable inferences in favor of the non-moving party. See
Bradford v. Bernstein, 510 So.2d 1204 (Fla. 2d DCA 1987); Petruska v. Smartparks-Silver
Springs, Inc., 914 So.2d 502 (Fla. 5th DCA 2005).
- SOLICITATION BY OPPOSING ATTORNEY: I received in the mail a letter from the opposing attorney offering help with foreclosure defense……conflict of interest?