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)