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CECILE SCOON
25 E 8TH ST
PANAMA CITY, FL 32401-2901
 LEXSEE 566 SO.2D 885

JEFF-RAY CORPORATION, Appellant, v. JAMES CARY JACOBSON, BRUCE

M. GOTTLIEB and MARY E. JACOBSON, Appellees

Case Nos. 88-2594, 88-3363

Court of Appeal of Florida, Fourth District

566 So. 2d 885; 1990 Fla. App. LEXIS 6806; 15 Fla. L. Weekly D 2278

September 12, 1990, Filed

SUBSEQUENT HISTORY: [**1] Released for
Publication September 28, 1990.
PRIOR HISTORY: Consolidated appeals from the
Circuit Court for Broward County; Joseph E. Price, Jr.,
Judge.
COUNSEL: Oliver Addison Parker of Law Office of
Oliver Addison Parker, Fort Lauderdale, for appellant.
Charles A. Finkel of Jacobson and Associates,
Hollywood, for appellees.
JUDGES: Anstead and Polen, JJ., concur. Stone, J.,
concurs in part and dissents in part with opinion.
OPINION BY: PER CURIAM
OPINION
[*885] We reverse the final summary judgment
entered in favor of the plaintiffs in this mortgage
foreclosure. The appellant made an unrebutted showing
that it did not receive notice of the summary judgment
motion or hearing until receipt of the judgment itself. It
was an abuse of discretion for the trial court to deny
appellant's motion for relief and rehearing. The appellant
had shown the likelihood that substantial prejudice may
occur if not allowed to rebut and show misrepresentation
or mistake in the amount due, which is substantially at
variance with the defendant's claimed amortization.
[*886] We recognize that an apparent prior lack of
diligence in the defense may have influenced the trial
court decision on the motion for rehearing. However, in
the absence of findings [**2] or any rebuttal of the
appellant's affidavits, the motion for rehearing should
have been granted. We note that the defendants' motion
was filed immediately upon receipt of the court order.
Cf. Zimmerman v. Vinylgrain Indus., 464 So.2d 1353
(Fla. 1st DCA 1985); LaCore v. Giralda Bake Shop, Inc.,
407 So.2d 275 (Fla. 3d DCA 1981). See also
Okeechobee Ins. Agency, Inc. v. Barnett Bank, 434 So.2d
334 (Fla. 4th DCA 1983).
We also reverse and remand on the second point
raised by appellant; that is, that the trial court erred in
denying defendant's March 9, 1988, motion to dismiss
for failure to state a cause of action. Appellees' complaint
for mortgage foreclosure was filed on January 4, 1988,
and alleged an assignment of the subject mortgage to
them in 1986. However, it was not attached to the
complaint. When the alleged assignment was finally
produced, it was dated April 18, 1988, some four months
after the lawsuit was filed.
Our opinion in Safeco Insurance Co. v. Ware, 401
So.2d 1129 (Fla. 4th DCA 1981), would support
dismissal of the action based on failure to comply with
Florida Rule of Civil Procedure [**3] 1.130. Given the
scenario before us, appellees' complaint could not have
stated a cause of action at the time it was filed, based on
a document that did not exist until some four months
later. Marianna & B.R. Co. v. Maund, 62 Fla. 538, 56
So. 670 (Fla. 1911). If appellees intend to proceed on the
April 18, 1988, assignment, they must file a new
complaint.
Therefore, the final summary judgment is reversed
and remanded for further proceedings in accordance with
this opinion.
 Page 3

CONCUR BY: STONE (In Part) I concur in reversing the order denying appellant's
motion for relief and rehearing for the reasons stated in
DISSENT BY: STONE (In Part) the majority opinion. As to the second point discussed in
the majority opinion and as to all other issues raised on
DISSENT appeal, I would affirm.
STONE, J., concurring in part and dissenting in part.
 120C9F
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PANAMA CITY, FL 32401-2901