        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT


             STATEWIDE HOMEOWNERS SOLUTIONS, LLC,
                          Appellant,

                                      v.

                     NATIONSTAR MORTGAGE, LLC,
                              Appellee.

                              No. 4D13-3467

                            [December 9, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard Harrison, Judge; L.T. Case No. 2011CA020936.

   Jonathan Kline, Stephanie M. Taylor and Rachel Bentley of Jonathan
Kline, P.A., Weston, for appellant.

   Nancy M. Wallace and Kristen M. Fiore of Akerman, LLP and William P.
Heller of Akerman, LLP, Fort Lauderdale, for appellee.

CONNER, J.

   The appellant appeals a foreclosure in rem summary judgment in favor
of Nationstar. Although the appellant raises several issues on appeal, we
address only one of its arguments and reverse. We agree with appellant’s
argument that Nationstar failed to satisfy its heightened burden of proof
on its motion for summary judgment filed prior to the appellant answering
the complaint. After being put on notice that the appellant was contesting
standing, Nationstar failed to establish that no answer which the appellant
might file could present a genuine issue of material fact as to Nationstar’s
standing.

             Factual Background and Trial Court Proceedings

   Statewide acquired title to the subject property at a foreclosure sale
after a homeowners’ association obtained a final judgment against the
homeowner, foreclosing its claim of lien for unpaid association
assessments. Prior to the issuance of Statewide’s certificate of title, Aurora
Loan Services, LLC (“Aurora”) filed a one-count verified complaint for
foreclosure in rem against the prior homeowner and others, alleging a
default under the note and mortgage. The complaint alleged that Aurora
“is the servicing agent for Deutsche Bank Trust Company Americas
[(“Deutsche Bank”)], as trustee, to whom the note is specifically endorsed,
and is authorized to prosecute this foreclosure action on behalf of
[Deutsche Bank].” Attached to the complaint were copies of the note and
mortgage. The note contained two undated special endorsements: one
from the original lender, Homecomings Financial Network, Inc., to
Residential Funding Corporation; and the other from Residential Funding
Corporation to Deutsche Bank.

   Having not been served with a summons, Statewide filed a motion to
intervene as the owner of the real property in the mortgage foreclosure
action and a motion to dismiss. The motion to intervene was granted.1
The motion to dismiss asserted, among other things, Aurora’s lack of
standing. It does not appear that the motion to dismiss was ever ruled
upon.    After Statewide was allowed to intervene, Nationstar was
substituted as party plaintiff in place of Aurora, pursuant to Aurora’s
motion explaining that the servicing rights of the subject note and
mortgage had been transferred from Aurora to Nationstar.

    Subsequently, Nationstar filed a Motion for Summary Judgment of
Foreclosure in rem. Attached to its motion, Nationstar filed several
affidavits, including one attesting to the conclusory statement that
Nationstar “holds the promissory note.” Nationstar then obtained defaults
against the prior homeowner and the other defendants, but not against
Statewide. In response to Nationstar’s summary judgment motion,
Statewide filed its affidavit in opposition asserting, among other things,
that Nationstar did not have standing.2

    On the day of the hearing on Nationstar’s motion for summary
judgment, Nationstar filed the original note and mortgage with the trial
court. At the hearing, counsel for Statewide argued that Nationstar had a
heightened burden in proceeding on summary judgment prior to Statewide
filing an answer to the complaint and maintained that Nationstar had

1 In moving to intervene, the appellant sought approval “to assert any claims or
defenses to protect its rights and interests.” The order granting the motion does
not state any limitations, so it appears that the appellant was granted party
status.

2 Although the affidavit does not appear in the appellate record, an argument
made by Nationstar’s counsel in the transcript of the summary judgment hearing
indicates the affidavit in opposition was filed.


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failed to meet that burden or to even show that there were no genuine
issues of material fact. Among other things, Statewide argued that
Nationstar, the current plaintiff, had failed to show that it had standing or
had been authorized to bring the suit. In response, Nationstar insisted
that it had standing, having been substituted as party plaintiff, because it
had Power of Attorney for Deutsche Bank, with a note endorsed to
Deutsche Bank. However, review of the record does not indicate that
Nationstar submitted any affidavits or evidence to reflect its purported
“Power of Attorney” or servicer status. Nevertheless, the trial court granted
Nationstar’s motion for summary judgment, and entered final judgment in
its favor. After its motion for rehearing was denied, Statewide gave notice
of its appeal.

                             Appellate Analysis

   The granting of a motion for summary judgment is reviewed de novo.
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000). Summary judgment is appropriate only where “there is no genuine
issue of material fact and if the moving party is entitled to a judgment as
a matter of law.” Fla. R. Civ. P. 1.510(c). The burden is on the moving
party to “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.” Moore v. Morris, 475 So.
2d 666, 668 (Fla. 1985). Notably, “a plaintiff who moves for summary
judgment before a defendant files an answer has a ‘difficult burden.’”
Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696, 698 (Fla. 4th DCA
2012) (citing Goncharuk v. HSBC Mortg. Servs., Inc., 62 So. 3d 680, 681–
82 (Fla. 2d DCA 2011)).

      When a plaintiff moves for summary judgment before the
      defendant answers the complaint, the plaintiff must not only
      establish that no genuine issue of material fact is present in the
      record as it stands, but also that the defendant could not raise
      any genuine issues of material fact if the defendant were
      permitted to answer the complaint. The plaintiff must
      essentially anticipate the content of the defendant’s answer
      and establish that the record would have no genuine issue of
      material fact even if the answer were already on file.

Id. (emphasis added) (citations omitted) (internal quotation marks
omitted).

  Statewide argues that Nationstar failed to establish that no answer
which Statewide might file could present a genuine issue of material fact

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as to Nationstar’s standing. We agree.

    In Dominko, we held that it was error to enter summary judgment in
favor of the bank where it had “failed to meet its burden [to] show that no
answer which the [homeowner] might file could present a genuine issue of
fact.” Id. In that case, the bank filed a foreclosure suit against the
homeowner, who did not file an answer to the complaint. Id. at 697. The
bank, however, did not move for a default. Id. Instead, the bank moved
for summary judgment. Id. Afterward, the homeowner filed his own
motion for summary judgment arguing that the suit should be dismissed
based on the bank’s failure to comply with the pre-suit notice requirement.
Id. at 698. However, the homeowner never set a hearing on his motion for
summary judgment. Id. Thereafter, the homeowner filed his response in
opposition to the bank’s motion for summary judgment, but failed to
provide any affidavits in support thereof. Id. The trial court granted the
bank’s motion for summary judgment after a hearing. Id. The homeowner
appealed, arguing that summary judgment was improper because there
was a genuine issue of material fact regarding whether the bank complied
with the condition precedent of providing a pre-suit notice of default. Id.
On appeal, we agreed with the homeowner and reversed, explaining that
when the bank moved for summary judgment, the homeowner had not
filed an answer and a default had not been entered against him, resulting
in a heavier burden on the bank on summary judgment. Id. “Although
[the bank] made the general allegation in its complaint that all conditions
precedent to the foreclosure action had occurred, there was no evidence in
the record that [the bank] complied with paragraph twenty-two of the
mortgage.” Id. Therefore, we concluded that the bank “did not establish
that the record would have no genuine issue of material fact where it did
not address the notice of acceleration in the motion for summary judgment
or accompanying affidavits.” Id. at 698-99.

    We find that the facts of the instant case are analogous to those in
Dominko. Here, as was the case in Dominko, when Nationstar moved for
summary judgment, Statewide had not filed an answer, and a default had
not been entered against it, resulting in a heavier burden on Nationstar
for summary judgment. Additionally, like the homeowner in Dominko, who
had filed his own motion for summary judgment challenging the bank’s
compliance with the pre-suit notice requirement but had not set it for
hearing, Statewide also had filed a motion to dismiss (though prior to being
granted intervention), challenging, among other things, Nationstar’s
standing, but had also not yet set the matter for hearing. Statewide also
filed an affidavit in opposition to the motion for summary judgment,
asserting a lack of standing. Furthermore, as in Dominko, review of the
record in the instant case reflects that Nationstar failed to meet its burden

                                     4
to show that no answer which Statewide might file could present a genuine
issue of fact. Quite simply, Nationstar failed to file sufficient summary
judgment evidence regarding its standing to file suit.

   As such, we reverse the final summary judgment and remand for
further proceedings consistent with this opinion. As we explained in
Dominko, however, on remand, Nationstar would not be precluded from
submitting another motion for summary judgment on a more fully
developed record.

   Finally, we take note of one of Statewide’s other arguments on appeal,
in which it contends that the trial court erred in denying its motion for
disqualification of the trial judge. Statewide maintains that at the
summary judgment hearing, the trial judge silenced its arguments,
showing a clear bias in favor of Nationstar, prior to Statewide putting forth
its argument. However, Statewide’s motion to disqualify was filed
approximately two months after the summary judgment hearing and the
order entering final judgment. Accordingly, its motion to disqualify was
untimely filed, and the trial court therefore did not err in denying same.
See Fla. R. Jud. Admin. 2.330(e).3 Nevertheless, while we do not reverse
on this issue, based upon our review of the hearing transcript and the trial
judge’s comments made therein, we suggest that on remand, future
proceedings in this case be held before a different judge.

     Reversed and remanded.

STEVENSON and GERBER, JJ., concur.


3   The time for which a motion to disqualify a judge must be filed is as follows:

         A motion to disqualify shall be filed within a reasonable time not to
         exceed 10 days after discovery of the facts constituting the
         grounds for the motion and shall be promptly presented to the
         court for an immediate ruling. Any motion for disqualification made
         during a hearing or trial must be based on facts discovered during
         the hearing or trial and may be stated on the record, provided that
         it is also promptly reduced to writing in compliance with subdivision
         (c) and promptly filed. A motion made during hearing or trial shall
         be ruled on immediately.

Fla. R. Jud. Admin. 2.330(e) (emphasis added). Thus, the time to file the motion
for disqualification in this case would have been at the subject hearing or within
ten days thereafter.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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