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The Florida Court of Appeals for the 4th District handed down yet another reversal on conditions precedent Tuesday in the case Haber v. Deutsche Bank National Trust Company:

Haber v. Deutsche Bank National Trust Company, No. 4D10-4458 (Fla. 4DCA 2012)

Given the recent discussion in John Lewis' thread "AFFIRMATIVE FORECLOSURE DEFENSES" relating to whether or not particular defenses are affirmative defenses, this case is still a horrible disappointment.


Mr. Roper showed the foreclosure defense community the way to successfully defend using conditions precedent in his exposition within the thread "The Conditions Precedent Affirmative Defense" a little over a year ago:


He then chronicled successful cases of defendants arguing conditions precedent within this and other threads here at the Forum.  When he noted that many defendants, especially in Florida, were incorrectly characterizing conditions precedent as an affirmative defense, he made this further expository post:   


A Defense, But Perhaps NOT an Affirmative Defense


He tried to be gentle with these idiots, suggesting that they review their law textbooks, their pleadings and their assumptions.


Still, a year later, the dimwits in the Florida foreclosure defense bar are making the wrong argument.


Shallow parrots, such as Ann, continue to litter the Forum and other sites with suggested pleadings that incorrectly characterize conditions precedent as an affirmative defense.


The defendants make the incorrect argument in their answer, present the argument incorrectly in opposing summary judgment and then make the incorrect argument in their appellate brief.


Even so, conditions precedent can form the basis of a partial victory.


When a defendant makes even a REAL affirmative defense, a plaintiff seeking summary judgment must show that the affirmative defense fails as a matter of law.


For this reason, a defense of conditions precedent supported by an affidavit or other admissible defensive evidence controverting satisfaction of conditions precedent would often be successful in precluding summary judgment no matter who bore the burden of proof.


The issue of burden of proof and whether or not the burden of proving conditions precedent is borne by the plaintiff or the defendant is rarely called into issue in a motion for traditional summary judgment by the plaintiff.


If the burden doesn't really matter, then WHY is important to get the argument correct in the answer, opposition and other filings?


Well, there are two answers to this.  First, if a defendant can prevent summary judgment, the matter will often go to trial.  There, the burden of proof can be particularly critical.


Second, in cases, such as the Haber case, where the plaintiff fails to bring forth any proof as to satisfaction of conditions precedent, it is readily apparent to an astute litigator that the defendant has made a very grave strategic error in failing to make a cross-motion for defensive summary judgment.


In Haber, it seems that the defendant DENIED receiving the required notices.  The plaintiff seems to have failed to engage this point AT ALL, which is actually NOT unusual.


The disputed fact issue as to satisfaction of conditions precedent is enough to win a reversal of the plaintiff's summary judgment.  But had the defendant also filed a cross-motion for defensive summary judgment, Haber could have obtained not only a reversal, but also a dismissal on the merits!  


This would be difficult to accomplish if conditions precedent was actually an affirmative defense.  It can be quite easy when the burden of proof is properly ascribed to the plaintiff, since proof of conditions precedent is actually an essential element of the plaintiff's cause of action!


Mediocre and inferior defense lawyers throughout Florida continue to get this argument WRONG.  Mr. Roper put his exposition on hearsay out there in Autumn 2010 and augmented this with his exposition on conditions precedent a year ago.  He laid these arguments out.  He showed everybody the cases.


This effective defensive technique does NOT sell useless "securitization audit reports" or "forensic loan audits".  It is simply a matter of good litigation strategy.  Since the swindlers and scam artists cannot make any money off of Mr. Roper's effective defense strategies, THEY ATTACK MR. ROPER and IGNORE the EFFECTIVE STRATEGIES! 

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Artie Schulmann

Excellent points of perspective, esp. on precedent conditions. I just wish the courts would address them not being fulfilled and realize that the legal proceedings were compromised by their prior notifications. Artie Schul

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Must filing a motion for a defensive summary judgment be done within a time limit?
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Must filing a motion for a defensive summary judgment be done within a time limit?


In most states, the same rules apply to both plaintiff's and defensive summary judgment, so your inquiry should begin with a careful reading of your state's rules.  Then read the cases on the rules.  The Federal summary judgment rule is Rule 56.  Many states have civil rules closely modeled and even numbered consistently with the Federal Rules.


This having been said, realize that a motion for defensive summary judgment typically cannot be made until sufficient time has passed for discovery.  Making a motion prematurely can have several undesirable consequences.


First, it is usually in the borrower's interest to draw the case out.  This is especially true when there is a defect such as lack of standing that can form the basis for a dismissal of the current case.  When a case is dismissed on standing, the plaintiff is usually going to clean up its case and re-file.  The plaintiff may very well win in a second outing.  So getting a sooner dismissal may actually accelerate the ultimate loss of the borrower's home.


Second, filing a motion for summary judgment can be interpretted by the court as an implicit announcement that the party is ready for trial.  So if a party has other discovery in mind, moving for defensive summary judgment may undermine the argument to prolong discovery or to delay a hearing on the plaintiff's motion.


But where discovery is over and a case is going to be heard on the plaintiff's motion, filing a cross-motion for defensive summary judgment makes a lot of sense.


You will not find a lot of models for defensive summary judgment floating around on the internet, because the poor excuses for lawyers who practice in the foreclosure defense area haven't thought of this yet!   That's OK, since most of the other materials floating around on the Internet by these incompetent lawyers are horrid anyway.  You will probably need to write your own motion.


To the most central aspect of your question as to scheduling, the answer is also "it depends".  It depends upon the state's rules of civil procedure, the local rules and court scheduling or docketing orders.


In some places state or local rules have certain time standards as to WHEN certain case events are to take place.  Even absent such rules, courts usually have great discretion (consistent with the rules) in managing their own dockets.


In most complex litigation, the parties enter into one or more scheduling orders, very often negotiated between the parties and blessed off on by the court.  However, in foreclosure litigation scheduling orders are rarely entered.


This is probably in part due to the fact that the defendant wants to stretch the case out as long as possible rather than get the matter decided quickly.  By contrast, the plaintiff is usually hoping first for a default judgment and if not a default will seek an early summary judgment.  Unrepresented borrowers rarely have the skill to resist summary judgment and most often have failed to get discovery under way and therefore have little basis to resist the scheduling of an early plaintiff's motion.


Only recently, due to docket crowding, the robo-signing meltdown and the collapse of several foreclosure mills have foreclosure cases begun to languish.


Overall, you need to check the rules, including the local rules, and check to see if any scheduling orders have been entered.  If no orders have been entered and no rule precludes it, then the defendant can usually file a motion for defensive summary judgment pretty much at any time after the completion of discovery.


Also, bear in mind that in most places, a court's ruling on a motion for summary judgment is without prejudice.  That is the denial of a MSJ is an interlocutory order.  Either party is usually free to file a new MSJ subject only to the court's scheduling orders and the patience of the court.


This should be done with some caution.  If you simply re-filed the very same material that the Judge considered and rejected before, you will simply anger the judge, because he will see this as a waste of time.  But if arguments or available evidence changes, a court can entertain several successive MSJs.  Some judges might even favor this, since the alternative is usually a full trial, which is almost always more time consuming


 Usually, the court is eager to clear cases off its docket, so if there exists a viable basis for the court to adjudicate a MSJ, then the court would probably rather do this than let the matter go to trial.

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Maybe this question should be it's own thread, but if a defendant wins a defensive motion for summary judgement, is that usually with or without prejudice? and can the defendant claim Res Judicata if the plaintiff re-files the case?

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Maybe this question should be it's own thread, but if a defendant wins a defensive motion for summary judgement, is that usually with or without prejudice? and can the defendant claim Res Judicata if the plaintiff re-files the case?


This would depend wholly upon the basis argued for the defensive summary judgment and the basis for the decision.


Bear in mind that one can move for summary judgment on one or more of the issues set forth within the answer.  Similarly, one can move for partial summary judgment on some argument or element of one of the issues, though this might aggravate the judge if syndicated into too many different issues across multiple motions.


Partial Summary Judgment

In respect of partial summary judgment for example, suppose that parties were litigating a breach of contract case where there was no dispute about the fact of the breach, but where there was a dispute as to one or more affirmative defenses and/or the amount of damages.


For example, impossibility is sometimes a valid affirmative defense.  Suppose that A and B had a contract for B to cater a wedding reception in New Orleans on Saturday, September 3, 2005.  Both A and B sign the contract and A makes a deposit.  B fails to deliver as promised.


A brings a timely suit against B within the limitations period.  B does not deny that he failed to perform under the contract, but raises the affirmative defense of impossibility.  B also disputes the amount of A's damages.  B claims that it was impossible to perform the contract as agreed, because after Hurricane Katrina hit, the venue for the reception in Ward 8 was under 12 feet of water.  B also argues that the Governor of Louisiana and the President of the United States had declared a state of emergency and that the catering the reception wasn't permissible under the emergency decrees then in effect.  B also claims that B's head chef had a headache that day and was unable to work.


A claims that all of the wedding guests had arrived at the reception equipped with snorkels and diving gear and were counting on a festive Hurricane themed wedding reception.


A could move for partial summary judgment on the undisputed fact of the breach of contract.  B might move for summary judgment on the affirmative defense.  Both might agree that the question of amount of damages was highly in dispute and would require a trial if A were to prevail.


The court might find that A had proven a breach and was entitled to summary judgment as to the fact of a breach of contract.  The court might or might not find for B on the affirmative defense in respect of some disputed evidence (possibly finding that the arrival of guests with snorkels and scuba gear did not overcome the emergency orders as a matter of law or, alternatively, finding that this raised a disputed fact issue).  Would the outcome be different if all of wedding guests worked for FEMA?


Summary judgment can be used to dispose of some, but not all claims or to prove some but not all of the essential elements of a claim.


This can sharply reduce the issues which need to be litigated at trial.


Theories of Defensive Summary Judgment

If the defendant sought summary judgment on standing, then a favorable ruling on such a standing argument would usually require dismissal without prejudice.


Similarly, suppose that the defendant proved that there was no default.  This would probably result in a dismissal with prejudice.  But it would NOT necessarily preclude the re-filing of another later suit if the borrower failed to pay in the future and another suit was brought in respect of a different default.


On the other hand, suppose that the plaintiff failed to prove that the borrower had borrowered money.  A dismissal on this basis would probably be res judicata to another suit in respect of the same indebtedness. 


Beating the plaintiff on evidentiary grounds, as Mr. Roper has proposed in his exposition on hearsay, conclusory affidavits and the "Best Evidence" Rule, would usually seem to give the borrower a pretty strong res judicata bar.


If the borrower has a really strong standing argument, it would probably be a good idea to make out that argument in a motion for defensive summary judgment, but not too soon.  Alternatively, the defendant could decided to gamble and stretch the matter out to await adjudication at a full trial. 


The astute borrower who has developed thoughtful and robust defenses faces the strategic question as to whether to press for a summary judgment, possibly on some issue other than standing, trying to get a dismissal with prejudice, or whether to save that dry powder for another outing! 


A borrower could raise different issues in successive motions, first seeking summary judgment on the preclusive issues and saving the standing issue for a later motion.  Or a borrower could do precisely the opposite, getting a dismissal on standing and saving the other defenses as dry powder for another day.


Which strategy is best would seem likely to be fact dependent, informed by the statutes and cases of a particular jurisdiction.  

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