In a recent Florida appellate case (already trumpeted at some other foreclosure defense web sites), a pro se litigant succeeded in getting the appellate court to overturn a summary judgment in a case where the plaintiff improperly sought to belatedly introduce summary judgment evidence and where the plaintiff's summary judgment evidence was internally inconsistent raising a disputed fact question. The case is:
Verizzo v. Bank of N.Y., Case No. 2D08-4647, COURT OF APPEAL OF FLORIDA, SECOND DISTRICT, 28 So. 3d 976; 2010 Fla. App. LEXIS 2520; 35 Fla. L. Weekly D 494, March 3, 2010, Opinion Filed, Released for Publication March 22, 2010.
In the Verizzo case, the plaintiff held back its summary judgment evidence (which was supposed to accompany the motion and be filed twenty days in advance of hearing) and despite a "certificate of service" alleging that the summary judgment proof was being submitted prior to the hearing, simply brought this evidence to the hearing to surprise and ambush the defendant.
Amongst the evidence was an alleged promissory note purportedly indorsed to an entity other than the plaintiff and a mortgage assignment purportedly assigning the mortgage to the plaintiff.
The appellate court found both that the surprise evidence was improperly admitted and that the evidence itself was inconsistent raising a fact issue precluding summary judgment.
This will be a good case to cite by those who are ambushed by untimely filed evidence. BUT REMEMBER TO OBJECT TO ADMISSIBILITY TO PRESERVE THE ERROR!