Faythe p. Woodrum, Timothy P. Woodrum and Dawn M. Woodrum v. Wells Fargo Mortgage Bank, N.A., 36 Fla. L. Wkly D2431b (Fla. 4th DCA Nov. 9, 2011) – a defendant may raise affirmative defenses in an affidavit to oppose summary judgment even when no answer is filed

In this foreclosure case, Defendants did not file an answer to the complaint.  Instead of moving for default, the bank moved for summary judgment.  One of the defendants filed an opposing affidavit raising various defenses, but still did not file an answer.  The trial granted summary judgment, and the same Defendant appealed.  The appellate court reversed, rejecting the bank’s argument that “affirmative defenses raised in an affidavit opposing the motion for summary judgment cannot be considered by the trial court.”  Rather, citing Rule 1.500(c), the court held, “[A] party may plead or defend at any time before a default is entered. . . . Because the bank failed to refute the affirmative defenses or show they were legally insufficient, it was error for the trial court to grant summary judgment.”

Faythe p. Woodrum, Timothy P. Woodrum and Dawn M. Woodrum v. Wells Fargo Mortgage Bank, N.A., 36 Fla. L. Wkly D2431b (Fla. 4th DCA Nov. 9, 2011)

Schaffer et al. v. First Bank et al., 36 Fla. L. Wkly D2363a (Fla. 4th DCA Oct. 26, 2011) – re-opening dismissed case after dismissal for failure to prosecute

In this foreclosure case, the trial court sent a notice of dismissal for failure to prosecute to bank counsel’s old address even though he had notified the court of a new address. Upon motion after over a month had passed, the court re-opened the case. The borrowers appealed, claiming that a motion to re-open must occur within one month of the dismissal. The appellate court disagreed and affirmed, holding that the supposed one-month restriction appeared only in an older version of the rule that had long since been amended.

Schaffer et al. v. First Bank et al., 36 Fla. L. Wkly D2363a (Fla. 4th DCA Oct. 26, 2011)