List Of Florida Appeals Court Reversals Keeps Growing As Trial Judges Continue Showing Lack Of Regard For Basic Procedural Rules In Foreclosure Cases

In West Palm Beach, Florida, The Palm Beach Post reports:

• A Palm Beach County family that lost its home in a 2010 foreclosure judgment is getting another shot at its case after the 4th District Court of Appeal said a lower court was premature in ruling for the bank.



• In the case, Dilcia Osorto v. Deutsche Bank National Trust Co., the homeowner was seeking evidence from the bank when the final foreclosure judgment was entered by a Palm Beach County circuit judge.



• Appeals court Judge Mark Polen said in the Wednesday decision that the judgment should not have occurred until the defendant's discovery was complete. The ruling sends the case back to the circuit court.



• Homeowner attorney Brian Korte, of Korte & Wortman in West Palm Beach, said he had requested information about a trust that is said to hold Osorto's mortgage when the summary judgment was granted.



• "The question is, does the trust even exist, and what we find is when we finally get a deposition taken is that no one has ever talked to the trust, they don't know what the address is, they don't know if the trust has employees," Korte said. "That's why trust cases have become difficult for the banks."

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• Korte said the law is clear that a summary judgment shouldn't be awarded when there is outstanding discovery,(1) but that straightforward rules don't always seem to apply in foreclosure cases.

For more, see Foreclosure ruling gives Palm Beach County family another chance at keeping their home.

For the court ruling, see Osorto v. Deutsche Bank National Trust Co., No. 4D10-3631 (Fla. 4th DCA, March 28, 2012).

(1) In reversing the ruling of Palm Beach County trial court Judge Roger B. Colton, the appeals court observed:

• The trial court "should not . . . entertain[] a motion for summary judgment until . . . discovery [is] concluded." Collazo v. Hupert, 693 So.2d 631, 631 (Fla. 3d DCA 1997).
  
  An order granting summary judgment while there is an outstanding request for production of documents is premature and the appellate court should reverse and remand for discovery to be completed. Henderson v. Reyes, 702 So.2d 616, 616 (Fla. 3d DCA 1997).
  
  However, if the incomplete discovery will not raise future disputed issues of material fact, summary judgment may be properly granted. Estate of Herrera v. Berlo Indus., Inc., 840 So.2d 272, 272 (Fla. 3d DCA 2003) (holding that summary judgment is proper where "future discovery would not yield any new information that the trial court either did not already know, or needed to make its ruling").
  
  Here, a motion to compel, which was granted by the trial court, required Deutsche Bank to provide answers for requests seven, nine, ten, and thirteen of Osorto's requests for production, and to provide pinpoint cites for the pooling and servicing agreement. If the additional discovery would not yield new information, summary judgment would be proper.
  
  The motion to compel required Deutsche Bank to actually answer seven, nine, ten, and thirteen, and to provide Osorto with: any agreement containing any obligation to repurchase the loan; originals or best copies of exhibits attached to the pooling and servicing agreement which affect this loan; originals or best copies of all documents concerning the repurchase or reassignment of the loan from the buyer or assignee back to the original seller or assignor or to any predecessor of the buyer or assignee; and originals or best copies of records concerning the transfer or assignment of the loan.
  
  While Deutsche Bank already provided the pooling and servicing agreement, the information that may be included in the answers to requests for production seven, nine, ten, and thirteen could potentially be material. Where the information contained in outstanding discovery could create genuine issues of material fact, summary judgment would not be proper.
  
  Therefore, the trial court erred in its entry of its order because summary judgment is considered premature until all discovery which may yield genuine issues of material fact is complete. As such, we reverse and remand this matter for further proceedings consistent with this opinion.