Wednesday, August 12, 2009

Third District Reverses Summary Judgment

In Bonilla v. Yale Mortgage Company (3D08-2160), the Third District reversed the trial court's summary judgment and stated:

Based upon the following circumstances, we agree with Bonilla that the trial court abused its discretion by denying Bonilla’s motion for rehearing: (1) Yale Mortgage moved for summary judgment seven days after Bonilla (who was unrepresented by counsel) filed and was granted an extension of time to obtain counsel and answer the complaint; (2) the attorney who received the pro bono referral package appeared at the hearing and requested a continuance, explaining that he had not yet spoken to Bonilla and therefore could not file a notice of appearance; (3) the trial court denied the request to continue the hearing; (4) pro bono counsel subsequently filed a notice of appearance and a timely motion for rehearing on Bonilla’s behalf, raising several issues; (5) the trial court did not address the issues articulated by Bonilla in her motion for rehearing; (6) the final summary judgment of foreclosure indicates that Bonilla was charged interest at an annual rate of 18% plus a 7% “prepayment penalty”; and (7) the trial court failed to resolve a critical legal issue: whether the 7% “prepayment penalty” qualifies as additional interest upon default, and if it does, when added to the 18% interest charged to Bonilla by Yale Mortgage, is the total interest charged by Yale Mortgage upon default usurious and unlawful.


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