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IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.

:16-2009-CA-006506AXXXMA DIVISION: CV-E OCWEN LOAN SERVICING, LLC. Plaintiff, v. MICHELLE D. FUTCH AND ROGER W FUTCH, WIFE AND HUSBAND ET. AL. Defendant(s). / DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND MOTION FOR CONTINUANCE COMES NOW, Defendant MICHELLE D. FUTCH AND ROGER W FUTCH, et. al, by and through the undersigned counsel, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure and files this Opposition to Plaintiffs Motion for Summary Judgment. For the reasons set forth below Plaintiffs Motion for Summary Judgment should be denied. I. Introduction This case arises from a defaulted promissory note that is secured by a Mortgage of property located in Jacksonville, Duval County, Florida. On April 24th, 2009 Plaintiff filed suit to foreclose the property at 291 Bon Air Dr, Jacksonville, Florida 32218 currently owned and occupied by the Defendants. The Plaintiff, OCWEN LOAN SERVICING, LLC., filed suit in this court for Foreclosure alleging in its complaint that it is the owner of the note and mortgage. The Defendant filed a motion to dismiss this complaint alleging that the Plaintiff was not the real party in interest and 1

lacked standing and that the Plaintiff had failed to show how it had standing as it had not attached anything to its complaint other than a mortgage between the Defendant and Castle Point Mortgage, Inc. As of the date of this opposition motion the Plaintiff has not responded to the Defendants motion to dismiss and now seeks summary judgment even though the Defendant has raised valid, facially sufficient defenses in its motion. On or about June 16th, 2009, the Defendant sought discovery from the Plaintiff through a set of interrogatories, requests for admissions and production related to the issue of standing. The Plaintiff has not responded to Defendants discovery requests as of the date of this pleading. Additionally, discovery in this matter has just begun in earnest. In fact, no depositions have been conducted and OCWEN LOAN SERVICING, LLC has not yet produced its documents responsive to requests for production propounded to it. As a result, entry of summary judgment at this time would be premature and the Court can properly deny the motion for summary judgment to allow discovery to be conducted. Fla. R.Civ. P. 1.510(f); see also, Brandauer v. Publix Supermarkets, Inc., 657 So.2d 932, 933 (Fla. 2d DCA 1995) (summary judgment should not be entered until the facts have been sufficiently developed so the court can be reasonably certain that no genuine issue of material fact exists.) Thus, OCWEN LOAN SERVICING, LLCs motion for summary judgment should be denied or in the alternative Defendant should be granted a continuance in order to obtain discovery and properly investigate all claims that may be available for his clients.

II.

Legal Argument 1. Standard on Motion for Summary Judgment 2

A movant is only entitled to summary judgment when materials that would be admissible as evidence demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. See Estate of Githens ex rel. Seaman v. Bon SecoursMaria Manor Nursing Care Ctr., Inc., 928 So.2d 1272 (Fla. 2d DCA 2006)(citing Fla. R. Civ. P. 1.510(c)). To determine whether a genuine issue of material fact exists, the court must view every possible inference in favor of the non-moving party. Id. citing Maynard v. Household Finance Corp. III, 861 So.2d 1204 (Fla. 2d DCA 2003). The moving party bears the burden of proving the non-existence of genuine issues of material fact, and the burden of proving that such issues exist is not shifted to the non-moving party until the movant has successfully met his burden. See Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138 (Fla. 2d DCA 2000). The merest possibility of the existence of a genuine issue of material fact will preclude the entry of summary judgment. Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138 (Fla. 2d DCA 2000)(citing to Quest Air South, Inc. v. Memphis Group, Inc., 733 So.2d 1109 (Fla. 4th DCA 1999); Cox v. CSX Intermodal, Inc., 732 So.2d 1092 (Fla. 1st DCA 1999); Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605 (Fla. 3d DCA 1997); Gardner v. Sabal Point Properties, Inc., 616 So.2d 1111 (Fla. 5th DCA 1993)). If even the slightest doubt that an issue might exist is raised, the doubt must be resolved against the moving party and summary judgment must be denied. See Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995); see also McQueen v. Roye, 785 So.2d 512 (Fla. 3d DCA 2000) (holding that summary judgment should be denied where even the slightest doubt exists regarding material issues of fact). Accordingly, because every possible inference is viewed in favor of the defendant the Plaintiff has not established beyond the slightest doubt that no genuine issues of material fact exist and summary judgment should be denied. 3

2. Plaintiff has failed to meet its burden In this case, Plaintiff is seeking summary judgment on its foreclosure complaint. As such, Plaintiff has the burden to either factually refute the alleged affirmative defenses to foreclosure or establish the affirmative defenses are legally insufficient to defeat summary judgment. Knight Energy Servs., Inc. v. Amoco Oil Co., 660So.2d 786, 789 (Fla. 4th DCA 1995); see also, Manassas Investments, Inc. v. OHanrahan, 817 So.2d 1080 (Fla. 2d DCA 2002). Plaintiff has done neither. As in Knight Energy and Manassas, the Affidavits of Plaintiff submitted in support of their motion for summary judgment speak only to the status of the Defendants indebtedness and does not factually refute any of the defenses raised by the defendants Motion to Dismiss. These allegations of indebtedness are insufficient to prove there is no genuine issue of material fact regarding the defenses raised by the Defendant. See, Knight Energy, 660 So.2d at 789; Manassas, 817 So.2d at 1080. Thus, the defendants legally sufficient defenses are completely unrefuted. See Manassas, 817 So.2d at 1080. Unless and until Plaintiff meets its initial burden under Rule 1.510, the defendant is not required to show there are issues to be tried. Knight Energy at 789. However, as is demonstrated above, there are numerous issues to be tried which preclude summary judgment at this time. Furthermore, Plaintiff has failed to show that any of the defenses raised by the defendant are legally insufficient to preclude summary judgment. The court sits in equity when deciding a mortgage foreclosure action. Id. Foreclosure can be denied where the note holder comes to the court of equity with unclean hands or the foreclosure and the extinguishing of other valid liens would be unconscionable. See Lamb v. Pike, 659 So.2d 1385, 1387 (Fla. 3d DCA 1995). Defendant has raised several defenses in their Motion to Dismiss which would provide valid grounds for this court, sitting in equity, to deny Plaintiffs request for foreclosure on the property 4

that is the subject of this claim. Plaintiff has failed to show how it has standing to bring this case, has not provided a copy of the original note that is the subject of this case, nor has it shown that it has complied with condition precedent in filing this action, see Jeff-Ray v. Jacobson, 566 So.2d 885 (Fl. 4th DCA 1990), thus, its Motion for Summary Judgment should be denied. The cases cited by Plaintiff are of no assistance to its efforts to obtain summary judgment. Due to Plaintiffs failure of condition precedent and lack of standing, Plaintiff has unclean hands and it is not entitled to the relief it seeks. See Indianapolis Morris Plan Corp. v. Portela, 364 So.2d 840, 841 (Fla. 3d DCA 1978) (Court in equity can refuse to enforce mortgage where lender is without clean hands and enter money judgment only). Thus, if any of the claims raised by the Defendant are proven, Plaintiff does not have a right to the relief sought and its request for this Court to enter a judgment of foreclosure should be rejected. As is made clear by the Knight case, the affirmative defenses of unclean hands and unconscionability are legally sufficient defenses to a mortgage foreclosure. Knight, 660 So.2d at 789. Because Plaintiff has not shown that the defenses raised by the defendant in its Motion to Dismiss are legally insufficient under Florida law, its motion for summary judgment should be denied. III. Conclusion Based on the arguments presented above it is clear that there are genuine issues of material fact to be tried in this case and that OCWEN LOAN SERVICING, LLC has wholly failed to meet its burden under Rule 1.510 of the Florida Rules of Civil Procedure. Furthermore, no discovery has been conducted in this case and a ruling on the motion for summary judgment at this time would be premature. Under Rule 1.510(f), the Defendants should be given the opportunity to develop a record through discovery to allow this Court to properly determine whether there are 5

genuine issues of material fact at issue. WHEREFORE, Defendants, MICHELLE D. FUTCH AND ROGER W FUTCH, respectfully requests this Court to deny the Plaintiffs Motion for Summary Judgment or grant a continuance in this matter and award such other and further relief as is deemed just and proper by the Court I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon the Plaintiff, through their attorney Grace Santos, Law Offices of Daniel C. Consuegra, 9204 King Palm Dr. Tampa, Fl. 33619 via US Mail this ___ day of ____ 2009. RESPECTFULLY SUBMITTED JACKSONVILLE AREA LEGAL AID

______________________________ Stephen F. Albee FBN 979686 126 West Adams Street Jacksonville, Florida 32202 Telephone: (904) 356-8371 Facsimile: (904)224-1587