ALVARO E. AZANZA AND MARIA A. CEDENO AZANZA, PETITIONERS,
v.
PRIVATE FUNDING GROUP, INC., A FLORIDA CORPORATION, RESPONDENT

Fla. 4th DCA | 2009-10-07
No. 4D09-3751
WARNER, STEVENSON and HAZOURI, JJ., concur.
24 So. 3d 586 Florida District Court of Appeal, Fourth District (2009) Positive Treatment
Cited by 5 cases

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Synopsis

Petitioners sought a writ of certiorari to quash a summary judgment foreclosure order and a subsequent order denying their motion to postpone the foreclosure sale. The court denied the petition, holding that petitioners waived any objection to insufficient notice of the summary judgment hearing by failing to raise it timely before or during the hearing or in a motion for rehearing.

Holding

The court held that any error in failing to provide twenty days' notice prior to a summary judgment hearing is waived if the party does not object to insufficient notice before the hearing, at the hearing, or in a timely motion for rehearing. Because petitioners failed to timely raise this objection, they waived the issue and are not entitled to extraordinary writ review.

Headnotes

[1] A party waives the right to object to insufficient notice of a summary judgment hearing if the objection is not raised before, at, or in a motion for rehearing following…

[2] Failure to object to insufficient notice of a summary judgment hearing does not constitute a departure from the essential requirements of law.

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Key Quotes

“any error in failing to give twenty days notice prior to a summary judgment hearing is waived if the party does not object to insufficient notice either before a summary judgment hearing, at the summary judgment hearing, or in a motion for rehearing”

Establishes the waiver standard for notice defects in summary judgment proceedings

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Facts & Procedural History

The underlying foreclosure action was filed on September 3, 2008. The respondent moved for summary judgment on January 20, 2009, with a hearing schedu…

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Topics
Waiver Of Procedural Defects Petition For Writ Of Certiorari Foreclosure Writ Of Certiorari

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Petitioners, Alvaro E. Azanza and Maria A. Cedeno Azanza, petition this court for issuance of a writ of certiorari. In their petition, they request that this court quash the orders of the lower tribunal dated September 10, 2009, and February 4, 2009. The September 10, 2009 order, for which review is sought, denied the petitioners’ motion to postpone the foreclosure sale of their home and to vacate the February 4, 2009, order. The February 4, 2009, order granted a summary judgment of foreclosure to respondent ten days after the motion for summary judgment was served on petitioners. We deny the petition, as the petitioners have not shown a departure from the essential requirements of law.

According to the petition, the underlying action was filed September 3, 2008. On January 20, 2009, respondent moved for summary judgment and served a notice of hearing. The hearing was held fifteen days later on February 4, 2009, and the court entered a final judgment of foreclosure. The petitioners did not timely appeal this judgment. Then, after retaining counsel, petitioners, a day before the scheduled foreclosure sale, filed a limited notice of appearance and an emergency motion to postpone the sale. As grounds, counsel argued the summary judgment of foreclosure was improper because it was granted in violation of the Florida Rules of Civil Procedure, as petitioners were not given twenty days notice prior to the summary judgment hearing. See Fla. R. Civ. P. 1.510(c) (stating that “[t]he movant shall *587serve the motion at least 20 days before the time fixed for the hearing”). The motion alleged, without explanation, that the petitioners did not waive compliance with rule 1.510(c), they had defenses to raise, and the court had no discretion regarding the time requirements of rule 1.510(e). The trial court denied the motion. This petition followed.

This court has held that any error in failing to give twenty days notice prior to a summary judgment hearing is waived if the party does not object to insufficient notice either before a summary judgment hearing, at the summary judgment hearing, or in a motion for rehearing. E & I, Inc. v. Excavators, Inc., 697 So.2d 545, 546 (Fla. 4th DCA 1997) (holding that “where, as in the present case, there was no objection to the insufficient notice prior to the [summary judgment] hearing, at the [summary judgment] hearing, nor in the motion for rehearing, the issue has been waived”). If this issue can be waived and, if unpre-served, is not grounds for reversal on direct appeal, it should not be grounds for an extraordinary writ filed months after the time for an appeal has run. Although petitioners’ motion filed in the trial court alleges that they did not waive compliance with the rule, there is no showing in this case that they did not have a sufficient opportunity to object to the insufficient notice either before the summary judgment hearing, at the summary judgment hearing, or in a timely motion for rehearing. Petitioners have, therefore, neither shown a departure from the essential requirements of law nor that there is any basis for granting certiorari review. We, accordingly, deny the petition.

WARNER, STEVENSON and HAZOURI, JJ., concur.

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Citator

Cited By

  • Vidal v. Liquidation Props., Inc., 104 So. 3d 1274 (Fla. 4th DCA 2013)
    …that counsel for the Vidals did not make this objection at the hearing, instead deciding to oppose the motion for summary judgment on the merits. As the issue was waived, it cannot be grounds for reversal on appeal. Azanza v. Private Funding Group, 24 So. 3d 586, 587 (Fla. 4th DCA 2009). We have held that the one who owns or holds the note is entitled to foreclose on the mortgage. See, e.g., Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010). In filing a mortgage foreclosure suit, as well…
  • Vidal v. Liquidation Props., Inc., 127 So. 3d 541 (Fla. 4th DCA 2012)
    …), the transcript reflects that counsel for the Vidals waived this rule, instead deciding to oppose the motion for summary judgment on the merits. As the issue was waived, it cannot be grounds for reversal on appeal. Azanza v. Private Funding Group, 24 So. 3d 586, 587 (Fla. 4th DCA 2009). We have held that the one who owns and holds the note is entitled to foreclose on the mortgage. See, e.g., Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010). In filing a mortgage foreclosure suit, as well…
  • Design Neuroscience Ctrs., P.L. v. Preston J. Fields, P.A. (Fla. 3d DCA 2023)
    …prior to a summary judgment hearing is waived if the party does not object to insufficient notice either before a summary judgment hearing, at the summary judgment hearing, or in a motion for rehearing.” (quoting Azanza v. Priv. Funding Grp., Inc., 24 So. 3d 586, 587 (Fla. 4th DCA 2009))). 3 Our disposition of DNC’s appeal on this basis disposes of the need to address the other arguments DNC directs toward the summary judgment. See Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461, 464 n.2 (Fla. 3d DCA 2018) (…

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