DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA

Case No. 05-2010-CA-037996-XXXX-XX

E*TRADE BANK,

Plaintiff,

vs.

JEFFREY S. KING and KAREN S. KING, et al.

Defendant( s).

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Defendants, JEFFREY S. KING and KAREN S. KING, by and through

undersigned counsel, file this Memorandum in Opposition to Plaintiff's Motion for

Summary Judgment and to Tax Attorney Fees and Costs, and states as follows:

1. On or about June 14, 2010, Plaintiff filed a Complaint for foreclosure against the

Defendants, JEFFREY S. KING and KAREN S. KING.

2. Defendants, JEFFREY S. KING and KAREN S. KING, through undersigned

counsel filed their Motion to Dismiss Plaintiff's Complaint on or about July 28, 2010

wherein they set forth legitimate concerns as to the veracity of Plaintiff's Complaint and

its standing to bring forth said lawsuit as of the date of filing.

3. Plaintiff filed its Motion for Summary Judgment and to Tax Attorney Fees and

Costs on or about August 27, 2010. Defendants' counsel was not furnished a copy of the

Plaintiff's Motion and is not listed on the Service List of said pleading.

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4. Plaintiff in support of it Motion for Summary Judgment filed an Affidavit as to Amounts Due and Owing stating Affidavit is employed by COLONIAL SAVINGS, F.A. who is familiar with the books of account of COLONIAL SAVINGS, F .A., servicing agent of Plaintiff. Plaintiff failed to furnish the books, records and documents which Affiant purported examined.

5. On or about November 23, 2010 Defendants propounded on Plaintiff their First Set of Interrogatories #1 - 30 and First Request for Production of Documents which included but was not limited to a request for Plaintiff to produce all documents, including computer printouts or ledger sheets, indicating payments received and posted to Defendants account during this loan transaction, and whether the payment was posted to interest or principal, late charges, or escrows for the subject loan.

6. Plaintiff's response to Defendants' discovery requests has not been furnished as of the date of filing of this motion.

7. Defendants have submitted a Contract for Sale and Purchase to Plaintiff and are

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presently awaiting approval of a short sale offer on the subject property. Defendants respectfully request the parties attend mediation in an effort to resolve the issues pending before the court and to prevent the necessity of further judicial proceedings.

8. Defendant affirmatively states that there exist genuine issues of material fact, which preclude the entry of Summary Final Judgment.

MEMORANDUM OF LAW

1. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED AS PLAINTIFF HAS FAILED TO SUFFICIENTLY PLEAD ITS ENTITLEMENT TO BRING FORTH THIS CAUSE OF ACTION.

9. "The function of the court in passing on a motion for summary judgment is simply to determine whether a genuine issue exists and whether such issue is material; it does not determine the issue .... A party should not be deprived of his full day in court by summary proceedings if the record indicates that he has a bona fide potential cause of action or defense." Monroe v. Appelton, 419 So.2d 356,357 (Fla. 2d DCA 1982).

10. The summary judgment procedure must not be used as a substitute for trial, Burkett v. Parker, 410 So.2d 947, 948 (Fla. 1st DCA 1982).

11. It has long been recognized that "[u]pon motion for summary judgment it is the movant's burden to demonstrate, by admissible evidence, the nonexistence of any genuine issue of material fact." Parker v. Dinsmore Co., 443 So.2d 356 (Fla. 2d DCA 1983) and also, Arlen Realty, Inc. v. Penn Mutual Life Insurance Company, 386 So.2d 886 (Fla. 1st DCA 1980).

12. Because the Granting of a summary judgment "is necessarily in derogation of the

constitutionally protected right to trial," Hall v. Talcott, 191 So.2d 40, 48 (1966), "[g]reat caution should be exercised in any summary judgment proceedings not to deny a

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litigant ample opportunity to demonstrate that he is entitled to the benefit of a trial." Stephens v. Dichienmueller, 216 So.2d 448,450 (1968).

13. The Courts have consistently stated that summary judgment "should not be granted unless the facts are so crystallized that nothing remains but questions of law ... ",

Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 327 So.2d 810, 817 (1st DCA 1976), and if there is "the slightest doubt upon any issue of material fact[,] then ... summary judgment may not be entered." Connell v. Sledge, 306 So.2d 194, 196 (1975) (e.s.). Harris v. Lewis State Bank, 436 So.2d 338, 340 (1st DCA 1983)

14. Where discovery is outstanding, summary judgment should not be granted.

Epstein v. Guidance Corp., Inc., 736 So.2d 137, (Fla. 4th DCA, 1999).

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15. The cases cited herein demonstrate that the instant cause is not ripe for summary judgment and the Defendants should be allowed their constitutional due process right to a trial on the merits.

16. As the record in this case fails to disclose any such demonstration by the Plaintiff of the nonexistence of any genuine issue of material fact, this Court should conclude Plaintiff has failed to satisfy the heavy burden placed upon it as the party seeking summary judgment, and therefore deny Summary Judgment.

WHEREFORE, Defendants, JEFFREY S. KING and KAREN S. KING, respectfully

submit this Memorandum in Opposition to Motion for Summary Judgment and move this court to dismiss the Plaintiff's Motion for Summary Judgment filed herein, require

of December, 2010.

IRENE FONZI, ESQ.. FONZI & ASSOCIATES, P.L. Attorney for the Defendants, King 1402 Highway AlA, Suite A Satellite Beach, FL 32937 Telephone: (321) 777-1191

Fax: (321) 777-2227

Florida Bar #544043

the parties to attend mediation, and to grant such other relief as this court deems

appropriate.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Memorandum in Opposition to Motion for Summary Judgment has been filed with the Clerk of the Court for Brevard County and furnished via Ll.S, Mail to Brian W. Klingel, Esq., Florida Foreclosure Attorneys, PLLC, 601 Cleveland Street, Suite 690, Clearwater, FL 33755 on

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