Opinion
No. 2D21-2199.
02-15-2023
OVERTURE REALTY, LLC, a Kentucky limited liability company, Appellant, v. CITY OF MADEIRA BEACH, Appellee.
Samuel Alexander of Alexander Appellate Law P.A., Deland; and Juan de la Torre of Law Office of Juan de la Torre, PLLC, Orlando, for Appellant. Matthew D. Weidner of Weidner Law, P.A., St. Petersburg, for Appellee.
Samuel Alexander of Alexander Appellate Law P.A., Deland; and Juan de la Torre of Law Office of Juan de la Torre, PLLC, Orlando, for Appellant.
Matthew D. Weidner of Weidner Law, P.A., St. Petersburg, for Appellee.
LaROSE, Judge.
Overture Realty, LLC, appeals a foreclosure summary judgment entered in favor of the City of Madeira Beach. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We reverse. The trial court erred in entering judgment under section 702.10(1), Florida Statutes (2021). Overture's answer and defenses raised genuine issues of material fact, thereby precluding judgment under the statute's expedited foreclosure proceedings.
Background
Overture owns property in the City. The City sued Overture to collect on liens imposed for Overture's alleged failure to maintain the property in compliance with the city code. The City later filed an amended foreclosure complaint, seeking a show cause order under section 702.10(1). The trial court entered the order and scheduled a hearing.
Overture objected, arguing that its motion to dismiss was pending, the amended complaint was not verified as required by section 702.10(1), and material facts were in dispute as to the existence and amount of the liens. The City filed a second amended complaint, alleging unpaid lien amounts of $405,850.65. The trial court reissued the show cause order.
Before the scheduled hearing, Overture filed a verified answer and various affirmative defenses. See § 702.10(1)(b). It moved to dismiss the second amended complaint and disputed the liens and the amounts allegedly due. After the show cause hearing, the trial court rendered a $405,850.65 foreclosure summary judgment for the City.
Analysis
The relevant show cause provisions of section 702.10(1)(b) are limited in application.
If a defendant files defenses by a motion, a verified answer, affidavits, or other papers or presents evidence at or before the hearing which raise a genuine issue of material fact which would preclude entry of summary judgment or otherwise constitute a legal defense to foreclosure, such action constitutes cause and precludes the entry of a final judgment at the hearing to show cause.
§ 702.10(1)(b) (emphasis added). Overture tells us that the expedited proceeding in section 702.10 applies to undefended cases. We agree. See Madura v. BAC Home Loans Servicing, LP, 655 F. App'x 717, 725 (11th Cir. 2016) ("The show-cause procedure established under [section] 702.10 is intended to provide an expedited process for the resolution of mortgage-foreclosure cases that are not materially defended." (citing BarrNunn, LLC v. Talmer Bank & Tr., 106 So.3d 51 (Fla. 2d DCA 2013))). Indeed, we accepted a similar argument in BarrNunn, 106 So. 3d at 52-53. But, unlike here, BarrNunn involved undisputed material facts. Id. Under section 702.10, a defendant must "raise a genuine issue of material fact." § 702.10(1)(a)3, (1)(b). Of course, a defendant cannot rely on meritless defenses to evade a foreclosure summary judgment. However, if a defendant files anything before or at the show cause hearing that "raise[s] a genuine issue of material fact which would preclude entry of summary judgment," the trial court may not employ the show cause procedures of the statute. § 702.10(1)(b). Section 702.10(1)(b) makes no mention of how to prove a genuine issue of material fact, only that the defendant raises it.
Overture's trial court filings challenged the amounts due and the validity of the liens. The City must prove validity and amount to succeed in its foreclosure suit. See Green Emerald Homes, LLC v. 21st Mortg. Corp., 300 So.3d 698, 703 (Fla. 2d DCA 2019) ("The amount due under the note is an element of the foreclosure cause of action.").
Overture's challenge to the liens raises a genuine issue of material fact that precludes expedited proceedings. The City offered minimal explanation of its lien calculations. Moreover, the City cited the daily fine amount and the alleged number of days of noncompliance. But, the City's second amended complaint contains no allegation concerning tolling for the days the property complied with the code. And, it appears the City sought to foreclose on a lien obtained by another party on the property.
The City maintains that our review is stymied by the lack of a show causing hearing transcript. See 1321 Whitfield, LLC v. Silverman, 67 So.3d 435, 437 (Fla. 2d DCA 2011) (affirming final foreclosure judgment where, due to absence of hearing transcript, this court was unable to meaningfully review the trial court's findings). However, "the absence of a transcript does not preclude reversal where an error of law is apparent on the face of the judgment." Chirino v. Chirino, 710 So.2d 696, 697 (Fla. 2d DCA 1998). Here, the missing transcript does not undermine our conclusion that Overture's verified answer and affirmative defenses raised genuine issues of material fact, precluding resolution via an expedited summary foreclosure proceeding.
We find MDTR LLC v. Deutsche Bank National Trust Co., 224 So.3d 781 (Fla. 5th DCA 2017), instructive. There, the trial court entered foreclosure summary judgment under section 702.10(1)(b) in favor of Deutsche Bank. Id. at 782. Prior to the show cause hearing, however, defendants challenged the amount in dispute. Id. at 783 ("MDTR filed an affidavit ... in opposition to entry of final judgment. The affidavit stated that `MDTR contests the amount of damages alleged in the Plaintiff's Complaint as MDTR has not had the opportunity to review a full payment history of the account'.... It also stated, `MDTR must be afforded the opportunity to conduct discovery in order to verify and potentially contest the amounts alleged due in Plaintiff's Complaint and Plaintiff's proposed Final Judgment.'"). Relying on our BarrNunn opinion, the Fifth District reversed the summary judgment. Id. at 784. Facing a similar scenario, we are compelled to do the same in our case.
Conclusion
Because the trial court could not enter a final foreclosure summary judgment at the show cause hearing under section 702.10(1)(b), we reverse.
Reversed and remanded for further proceedings consistent with this opinion.
SILBERMAN and VILLANTI, JJ., Concur.