LAKELAND — A Florida appeals court recently reversed a trial court’s decision to reject a woman’s request for a rehearing in a foreclosure case. 

On June 9, Florida’s Second District Court of Appeals ruled that a trial court had “abused its discretion” when it denied debtor Linda Cagwin’s motion for a rehearing after the lower court found that her affidavit was not sworn.

The legal dispute stems from a promissory note on a mortgage executed by Cagwin and Claude Miranda with Thrifty Rents. 

In 2014, Thrifty Rents filed a foreclosure complaint, alleging that Cagwin and Miranda had not made payments since December 2011.

Cagwin, however, argued that the amount Thrifty Rents alleged they owed was incorrect. The amount owed was not disclosed in the appeals court’s ruling. 

Thrifty Rents filed a motion for summary judgment, producing affidavits that showed the amount it alleged was due. Cagwin responded with an affidavit to object to the motion. Cagwin alleged, among other things, that she transferred property to Thrifty Rents in 2011 in partial payment of the loan.

“She alleged that she transferred property to Thrifty Rents in 2011 in partial payment of the loan, she was entitled to a credit in the amount of $100,000 based on that transfer and the amount was not properly applied, resulting in improper penalties and interest,” the appeals court said in its decision.

The trial court entered a uniform final judgment of foreclosure following a hearing on the motion for summary judgment. Cagwin filed a motion for rehearing, which was denied.

Cagwin then brought the case before the appeals court.

The appeals court sided with her, focusing on a disputed affidavit.  

“While we have no transcript of the hearing, the parties seem to agree that the trial court rejected Ms. Cagwin's affidavit as deficient because it was acknowledged rather than sworn to,” the appeals court said in its decision. “Nonetheless, Ms. Cagwin argues that she corrected this error with a properly sworn affidavit attached to her motion for rehearing."

A sworn affidavit means that a person swore under oath before a notary that the information in the document was true. 

The appeals court held that the allegations in the sworn affidavit could have prevented summary judgement and foreclosure, concluding that it was an abuse of discretion to deny Cagwin’s motion for rehearing considering her amended affidavit.

The opinion is not final until the window to file a rehearing motion closes. If such a motion is filed, the opinion will not be final until the motion is decided.

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Florida 2nd District Court of Appeal
1005 East Memorial Boulevard
Lakeland, FL 33801

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