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. 
2

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. 
3

“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 
4

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. TriSquare 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.