Senior Law Clerk
In Musser v. Wilmington Savings Fund Society, FSB (Fla. 1st DCA 2026), the First District reminded trial courts — and foreclosure plaintiffs — that summary judgment is not a blank check. Even when a lender successfully proves the core elements of its foreclosure case, courts cannot shortcut disputed factual questions about who signed a loan modification or award attorney’s fees without holding an evidentiary hearing. The First DCA affirmed the bulk of the foreclosure judgment, including the lost-note count, but reversed the trial court’s reformation of the loan modification and the fee award, remanding for further proceedings.
What happened: Wilmington Savings moved for final summary judgment in an Escambia County foreclosure action involving a loan held in the Residential Credit Opportunities Trust VII-A. The trial court granted the motion in full, entering judgment on foreclosure, reestablishment of a lost note, and declaratory relief. It also went further — reforming the borrowers’ loan modification agreement to add the signature of Regina Musser, Mr. Musser’s wife, who had not signed the document. The trial court concluded this omission was a mutual mistake. Finally, the trial court awarded attorney’s fees to Wilmington without holding an evidentiary hearing.
The Mussers appealed, challenging multiple aspects of the order. The First DCA affirmed the core foreclosure claims, finding the remaining challenges either meritless or unpreserved. But the court identified two reversible errors that the lender’s team should have caught before judgment was entered.
The reformation problem: To reform a written instrument, a party must show the document fails to reflect the parties’ actual agreement — either because of a mutual mistake by both sides or a unilateral mistake by one party combined with inequitable conduct by the other. (Insert Westlaw search for Florida standard for reformation of written instrument due to mutual mistake or unilateral mistake with inequitable conduct.) Wilmington argued that Mrs. Musser’s signature was simply left off due to mutual mistake. The Mussers disputed that Mrs. Musser ever intended to sign. That dispute was both material and genuine — exactly the kind of factual conflict that forecloses summary judgment. (Insert Westlaw search for Florida standard that summary judgment is improper where genuine dispute of material fact exists.) The First DCA reversed the reformation portion of the order.
The attorney’s fees problem: The rule is straightforward: absent a stipulation or waiver, attorney’s fees must be determined at an evidentiary hearing. (Insert Westlaw search for Florida rule requiring evidentiary hearing on reasonableness of attorney’s fees absent stipulation or waiver.) The trial court did not hold one, and there was no stipulation or waiver in the record. That procedural shortcut required reversal of the fee award as well.
Why it matters (for trial lawyers): This opinion is a useful two-part reminder that cuts in different directions depending on which side of the case you are on.
For lenders and foreclosure plaintiffs, the core lesson is discipline at the summary judgment stage. Winning on standing and the lost note does not mean every count in the complaint is summary judgment-ready. Where the factual record on a reformation claim contains a genuine dispute — here, whether the non-signing spouse actually intended to be bound — the lender must either build a cleaner record or proceed to trial on that count alone. Bundling a contested claim into a summary judgment package creates reversal risk even when the rest of the judgment is solid.
For borrowers’ counsel, the case illustrates that targeted, well-preserved arguments on discrete issues can produce meaningful relief even when the core foreclosure judgment stands. The Mussers did not defeat the foreclosure, but they secured reversal of the reformation — which has its own consequences for the enforceability of the modified loan terms — and wiped out the fee award, which will now require a full evidentiary hearing.
Key points:
- Summary judgment cannot resolve a genuine dispute about whether a non-signing spouse intended to execute a loan modification. If that factual question is contested, the reformation claim must go to trial.
- To reform a written instrument under Florida law, a party must prove mutual mistake or a unilateral mistake paired with inequitable conduct by the other party. (Insert Westlaw search for elements of reformation of contract in Florida.)
- Attorney’s fees cannot be awarded at summary judgment without an evidentiary hearing, unless the parties have stipulated to the amount or waived the hearing.
- A partial reversal is still a reversal. Even an otherwise solid foreclosure judgment can be unwound in part if contested counts are improperly resolved at summary judgment.
- Preserve your issues on appeal. The First DCA affirmed several of the Mussers’ other arguments as either meritless or unpreserved — a reminder that procedural defaults can cost borrowers’ counsel arguments they might otherwise have won.
Takeaway: Musser is a focused but instructive opinion. Foreclosure plaintiffs should audit every count before filing for summary judgment — not just the ones they are most confident about. If the factual record on any count, including reformation, is genuinely contested, that count needs to be tried, not shortcut. And the attorney’s fee award process is not a formality; skipping the evidentiary hearing without a clear record of stipulation or waiver is an unnecessary and easily avoidable appellate risk.
For borrowers’ counsel, the lesson is equally practical: identify the pressure points in the lender’s summary judgment package, preserve your objections, and do not concede counts that have genuine factual disputes embedded in them. Musser shows those arguments can win — even when the foreclosure itself does not.
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