Florida Record

Wednesday, January 22, 2020

Appeals court rejects foreclosure summary judgment

State Court

By Scott Holland | Dec 13, 2019

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LAKELAND — A state appeals panel has rejected a foreclosure summary judgment on grounds of insufficient evidence.

Hillsborough County Circuit Court Judge Gregory Holder had granted summary judgment in favor of Asset Management West 15 LLC, against G. Scott Richard. In an opinion filed Dec. 4, the Florida Second District Court of Appeal ruled against the judgment. Judge Stevan Northcutt wrote the opinion and judges Edward LaRose and Andrea Smith concurred.

According to Northcutt, Holder based the foreclosure judgment amount on an affidavit from Asset Management manager Kenan Thayer.

“However,” Northcutt wrote, “Thayer did not attach any business records to his affidavit, and there is nothing in the court record to support the amounts claimed in the affidavit.”

Richard challenged the principal, unpaid accrued interest as well as late charges. He also said even if Thayer had attached business records, the affidavit would have still constituted hearsay because the records of the pervious servicers weren’t verified via their own sworn affidavit.

Northcutt pointed to a 2014 Second District opinion in Wolkoff v. American Home Mortgage Servicing Inc., in which the court determined there was insufficient evidence to support the amount found to be owed. That case also turned on a lack of business records at the bench trial stage.

“Thayer's affidavit, standing alone, could not establish the amount of Richard’s indebtedness, and it was an insufficient basis for the summary judgment,” Northcutt wrote.

The panel reversed Gregory’s judgment and remanded the case for further proceedings. The ruling is not final until the time expires for Asset Management to file a motion for a rehearing.

Richard is represented by Ryan Torrens of Torrens Law Group PA, of Tampa, and attorneys Charles Stoecker and William Grimsley, of McGlinchey Stafford, of Fort Lauderdale.

Representing Asset Management is LeClair Ryan PLLC of West Palm Beach.

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