GREGORY J. WILLIS, APPELLANT,
v.
THE BANK OF NEW YORK MELLON AS SUCCESSOR BY MERGER TO THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT INC. ALTERNATIVE LOAN TRUST 2005-60TI MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-60TI, APPELLEE
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The trial court erred in reforming the mortgage to add a legal description during summary judgment because the bank's motion failed to provide notice of this issue, though the foreclosure judgment was otherwise affirmed.
A trial court errs in granting mortgage reformation to add a legal description in a foreclosure summary judgment when the moving party's motion does not raise reformation as an issue.
[1] A trial court lacks authority to grant mortgage reformation in a foreclosure summary judgment when the plaintiff's motion for summary judgment does not specifically raise…
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Join FLexlaw to unlock all legal intelligence“The appellee's motion stated only in general terms that no material issues of fact or law existed and that appellee was entitled to the relief requested. Such a motion is insufficient to place the nonmoving party on notice of the issues of fact or law which will be argued at the hearing.”
Court citing Locke v. State Farm Fire & Cas. Co. on the inadequacy of boilerplate summary judgment motions to provide notice
The Bank of New York Mellon sought summary judgment for foreclosure against Gregory Willis on a mortgage that lacked a proper legal description of the…
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In entering a final summary judgment of foreclosure, the trial court also granted a reformation of the mortgage to include a legal description of the property foreclosed, as apparently the mortgage failed to include the proper legal description. The appellee Bank’s motion for summary judgment and accompanying notice, however, did not raise the issue of reformation as an issue to be addressed at the summary judgment hearing. Because of the lack of notice, the court erred in reforming the mortgage to add a legal description. See Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 214-15 (Fla. 5th DCA 2011) (where motion for summary judgment makes no mention of request to reform legal description in mortgage, court errs in granting such relief in foreclosure judgment); Locke v. State Farm Fire & Cas. Co., 509 So.2d 1375, 1377 (Fla. 1st DCA 1987) (“The appellee’s motion stated only in general terms that no material issues of fact or law existed and that appellee was entitled to the relief requested. Such a motion is insufficient to place the nonmoving party on notice of the issues of fact or law which will be argued at the hearing.”).
Based on the record, the Bank’s boilerplate motion for summary judgment was insufficient to apprise appellant of this specific topic that would be discussed at the motion hearing. We affirm as to the remaining issues raised.
Affirmed in part; reversed in part and remanded.
WARNER, DAMOORGIAN and CONNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sample v. Wells Fargo Bank, N.A., 150 So. 3d 1191 (Fla. 4th DCA 2014)…irement that the motion for summary judgment state with particularity the grounds upon which it is based. Gee v. U.S. Bank Nat’l Ass’n, 72 So. 3d 211, 214 (Fla. 5th DCA 2011) (quoting Fla. R. Civ. P. 1.510(c)). In Willis v. Bank of New York Mellon, 115 So. 3d 1075 (Fla. 4th DCA 2013), we addressed a similar issue. The trial court granted reformation of a mortgage to include a correct legal description as part of a summary judgment of foreclosure. Id. at 1075. “The appellee [blank’s motion for summary judgment…
Authorities Cited
- Ginnifer GEE v. U.S. Bank Nat'l Ass'n, 72 So. 3d 211 (Fla. 5th DCA 2011)
- In re Leola Olive v. State, 509 So. 2d 1375 (Fla. 1st DCA 1987)
- Cecil E. Locke and his Wife v. State Farm Fire & Cas. Co., 509 So. 2d 1375 (Fla. 1st DCA 1987)