          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                          WELLS FARGO BANK, N.A.,
                                 Appellant,

                                         v.

                   SHAUNA BILECKI and SCOTT BILECKI,
                               Appellees.

                            Nos. 4D14-1015 & 15-67

                                  [May 18, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Cynthia G. Imperato, Judge; L.T. Case No. CACE 09-
011290.

  Michael K. Winston and Dean A. Morande of Carlton Fields Jorden
Burt, P.A., West Palm Beach, for appellant.

   John P. Seiler of Seiler Sautter Zaden Rimes & Wahlbrink, Fort
Lauderdale, and Darin J. Lentner and Mark C. Hillis of Foreclosure
Fighters Law Center, Fort Lauderdale, for appellees.

LEVINE, J.

   The issue presented in this foreclosure case is whether the bank was
required to prove, in opposition to a motion for summary judgment, that
it complied with conditions precedent where the homeowners did not
produce timely, competent evidence in support of their motion for
summary judgment. In other words, the issue is who has the burden to
prove the absence of any genuine issue of fact when moving for summary
judgment. We find that the trial court improperly placed the burden of
proof on the bank to produce evidence in opposition to the motion for
summary judgment when it properly rested with the homeowners, as
movants. As such, we reverse the final judgment in favor of the
homeowners as well as the order awarding attorney’s fees. 1

   In February 2009, Wells Fargo Bank, N.A., filed a foreclosure complaint
against Shauna and Scott Bilecki. The Bileckis filed an answer and

1   We sua sponte consolidate these appeals for all purposes.
affirmative defenses, denying that all conditions precedent had been
performed. Specifically, the Bileckis alleged that Wells Fargo failed to
provide notice as required by paragraph 22 of the mortgage because they
never received the default letter. With respect to notice, the mortgage
provided:

      Any notice to Borrower in connection with this Security
      Instrument shall be deemed to have been given to Borrower
      when mailed by first class mail or when actually delivered to
      Borrower’s notice address if sent by other means. Notice to
      any one Borrower shall constitute notice to all Borrowers.

    The Bileckis moved for summary judgment. In their motion, the
Bileckis argued that because they raised failure to perform conditions
precedent as an affirmative defense, Wells Fargo had the burden of proving
it performed the conditions precedent prior to acceleration. The Bileckis
attached a copy of the default letter to their motion. The letter, dated
December 14, 2008, was addressed to Shauna Bilecki.

   On March 20, 2013, Wells Fargo served an affidavit in support of its
own motion for summary judgment. In the affidavit, a vice president of
loan documentation for Wells Fargo stated that Wells Fargo’s business
records contained a notice of default and intent to accelerate which was
sent to the address provided by the Bileckis. The affidavit was filed on
March 21, 2013.

    On March 20, 2013, the Bileckis served an affidavit in opposition to
Wells Fargo’s motion for summary judgment. In the affidavit, Scott Bilecki
stated that he never received any pre-acceleration or pre-foreclosure notice
letter from Wells Fargo.

    The court held an initial summary judgment hearing on the Bileckis’
motion on March 22, 2013. Thereafter, the trial court continued the
hearing four times. At issue during the continued hearings was the date
Wells Fargo served and filed its affidavit. The Bileckis argued that the
affidavit did not comply with Florida Rule of Civil Procedure 1.510(c)
because it was served less than five days prior to the hearing. The trial
court ultimately granted summary judgment in favor of the Bileckis. Wells
Fargo moved for rehearing, arguing that the trial court improperly shifted
the burden to Wells Fargo to produce an affidavit. The trial court
confirmed its ruling and entered final summary judgment. Following entry
of summary judgment, the trial court entered an order awarding the
Bileckis attorney’s fees and costs. From these orders, Wells Fargo appeals.


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   “The standard of review of the entry of summary judgment is de novo.”
Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479 (Fla. 4th DCA
2006). “The law is well settled in Florida that a party moving for summary
judgment must show conclusively the absence of any genuine issue of
material fact, and the court must draw every possible inference in favor of
the party against whom a summary judgment is sought.” Id. at 479-80.
Significant to the instant case, “[o]nly where the movant tenders competent
evidence in support of his motion does the burden shift to the other party
to come forward with opposing evidence.” Id. at 480.

   As the party moving for summary judgment, the Bileckis had the
burden of demonstrating that no genuine issue of material fact existed.
Id. They did not meet their burden. The Bileckis did not submit any
timely, competent evidence in support of their motion. Although they
served Scott Bilecki’s affidavit, it was served in opposition to Wells Fargo’s
motion for summary judgment, not in support of their own motion.
Additionally, the affidavit was not served until March 20, 2013—two days
before the summary judgment hearing. Moreover, the affidavit was
insufficient to meet the Bileckis’ burden. The affidavit stated only that
Scott did not receive the demand letter. It did not address whether Shauna
received the demand letter. This is significant because the default letter
was addressed only to Shauna, as permitted by the mortgage. Further,
the mortgage required only that the default letter be sent by first class
mail; it did not require that the default letter be received unless “if sent by
other means” than first-class mail.

    Le v. Lighthouse Associates, Inc., 57 So. 3d 283 (Fla. 4th DCA 2011), is
instructive. In that case, the plaintiffs alleged that the defendant’s
negligence in failing to maintain a community swimming pool resulted in
injuries to their son, who contracted a virus. The defendant’s motion for
summary judgment alleged that the plaintiffs did not produce any credible
evidence which would entitle them to relief. The plaintiffs produced an
affidavit of an infectious disease physician, who opined that the son
contracted a virus after ingesting pool water. The trial court granted
summary judgment in favor of the defendant, finding that the plaintiffs’
affidavit was based on the stacking of inferences, and that the plaintiffs
had not produced enough evidence to prove their cause of action. This
court reversed, finding that the trial court misplaced the burden of proof
to the non-movant in granting the motion for summary judgment.

    Like in Le, in the instant case the trial court misplaced the burden of
proof on Wells Fargo. As the moving party, the Bileckis had the burden to
conclusively show the absence of any genuine issue of material fact. The
trial court entered summary judgment in favor of the Bileckis after the

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Bileckis argued that Wells Fargo did not serve its affidavit in opposition to
summary judgment more than five days prior to the hearing. By agreeing
with the Bileckis, the trial court inappropriately placed the burden on
Wells Fargo to produce evidence in opposition to the motion. Because the
Bileckis did not produce timely, competent evidence in support of their
motion, the burden should have never shifted to Wells Fargo. Craven, 925
So. 2d at 480.

    Finally, we note that although Wells Fargo was not required to serve an
affidavit in opposition to the motion for summary judgment until the
Bileckis met their initial burden, the trial court also erred in finding that
Wells Fargo’s affidavit was not timely served. Although the affidavit may
have been untimely as to the initial summary judgment hearing, it was
timely as to the subsequent continued hearings. See Rodriguez v. Tri-
Square Constr., Inc., 635 So. 2d 125 (Fla. 3d DCA 1994).

   In sum, the trial court erred in placing the burden on Wells Fargo to
produce evidence in opposition to the Bileckis’ motion for summary
judgment, where the Bileckis failed to meet their initial burden and
thereby shift the burden of proof to Wells Fargo. As such, we reverse the
final summary judgment in favor of the Bileckis. Because the trial court
erred in granting summary judgment in favor of the Bileckis, we also
reverse the order awarding the Bileckis attorney’s fees.

   Reversed and remanded.

DAMOORGIAN, J., and HANZMAN, MICHAEL A., Associate Judge, concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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