JOSEPH F. CUFFERI, APPELLANT,
v.
ROYAL PALM DEVELOPMENT CO., INC., APPELLEE
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Cufferi, a co-signer on a promissory note secured by a mortgage, appealed a summary judgment entered against him by Royal Palm Development Company seeking the full note amount. The court reversed, holding that genuine issues of material fact existed regarding alleged fraud and the satisfaction of the underlying mortgage that precluded summary judgment.
Summary judgment was improper because genuine issues of material fact remained, including Cufferi's affirmative defenses that were not effectively refuted by Royal Palm's evidence. As the moving party, Royal Palm bore the burden of disproving the defenses or establishing their legal insufficiency, which it failed to do.
[1] A summary judgment should not be granted when a defendant raises affirmative defenses that are not effectively refuted by the plaintiff.
[2] A plaintiff seeking summary judgment must either disprove the defendant's affirmative defenses with evidence or establish their legal insufficiency.
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Join FLexlaw to unlock all legal intelligence“A summary judgment should not be granted where there are issues of fact raised by affirmative defense which have not been effectively factually challenged and refuted.”
Establishes the controlling legal standard for summary judgment when affirmative defenses are asserted.
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Join FLexlaw to unlock all legal intelligenceCufferi co-signed a promissory note secured by a mortgage on property owned by the Hornsteins. The mortgagee assigned the mortgage to Royal Palm, whic…
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STONE, Judge.
The defendant, Cufferi, co-signed a promissory note secured by a mortgage on real property owned by Mr. & Mrs. Horn-stein, the other makers. The mortgagee assigned the mortgage to Royal Palm which subsequently satisfied the Hornstein mortgage, but reserved the right to collect on the note. Appellee instituted this action for the entire face amount of the note, without any explanation regarding satisfaction of the mortgage or the reason defendant received no credit for the satisfaction.
Appellant raised issues of fact by his answer and affidavit in opposition to the motion which were not refuted by appellee. Appellant, pro se, contended in his affirmative defenses that appellee agreed Cufferi did not owe any monies, that the satisfaction was payment, that Gregory Sheller as president of the appellee corporation had an undisclosed involvement with Hornstein relating to the note and mortgage, and that they had conspired to defraud appellant. The plaintiff’s affidavit in support of summary judgment failed to refute these defenses, except to deny any agreement excusing payment. Appellant further contended, in his affidavit in opposition to summary judgment, that he signed the note as an accommodation to the Horn-steins so that they could obtain a construction loan on their property. He claimed that Homstein defrauded him and that by satisfying the mortgage, appellee eliminated the security that defendant had relied upon in co-signing the note. He alleged that he had not been advised of the satisfaction, and that the actions of Royal Palm were taken with the intent to deceive and defraud him. These allegations were not refuted, nor does the record reflect an assertion that they could not have been proved nor that they were legally insufficient. The undisputed fact of the unexplained satisfaction supports a conclusion that these were not illusory or mere paper issues.
A summary judgment should not be granted where there are issues of fact raised by affirmative defense which have not been effectively factually challenged and refuted. Johnson v. Headley, 419 So. 2d 401 (Fla. 4th DCA 1982); Bunner v, Florida Coast Bank of Coral Springs, N.A., 390 So. 2d 126 (Fla. 4th DCA 1980). In Bunner, this court said:
In order for a plaintiff ... to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.
Id. at 127. Aroll v. ITT Commercial Finance Corp., 496 So. 2d 1011 (Fla. 3d DCA 1986); O’Neal v. Brady, 476 So. 2d 294 (Fla. 3d DCA 1985); First Mortgage Investors v. Boulevard National Bank of Miami, 327 So. 2d 830 (Fla. 3d DCA 1976); Howdeshell v. First National Bank of Clearwater, 369 So. 2d 432 (Fla. 2d DCA 1979). The burden is on the plaintiff, as the moving party, to demonstrate that the defendant could not prevail. Moore v. Morris, 475 So. 2d 666 (Fla.1985); Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
Appellant also argues that the trial court erred in denying a motion for rehearing where appellant disclosed newly discovered evidence that Sheller, the president of Royal Palm, had acquired fee simple title to the property from the Hornsteins prior to the Royal Palm satisfaction. However, we need not address the issues raised in the motion for rehearing or other motions filed subsequent to the summary judgment, since we conclude that genuine issues of material fact remained precluding entry of the judgment.
The trial court erred in granting the motion for summary judgment. We therefore reverse and remand for further proceedings.
GLICKSTEIN and DELL, JJ., concur.
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Citator
Cited By (17 total)
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Knight Energy Servs., Inc. v. Amoco OIL Co., 660 So. 2d 786 (Fla. 4th DCA 1995)…plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment. Cufferi v. Royal Palm Dev. Co., Inc., 516 So. 2d 983 (Fla. 4th DCA 1987); Redding v. Powell, 452 So. 2d 132 (Fla. 2d DCA 1984). Thus, only when the movant has tendered competent evidence in support of its motion does the burden shift and fall on the non-moving party to come forward with opposing evide…
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Alejandre v. Deutsche Bank Tr. Co. Americas, 44 So. 3d 1288 (Fla. 4th DCA 2010)…a party raises affirmative defenses, “[a] summary judgment should not be granted where there are issues of fact raised by [the] affirmative defense[s] which have not been effectively factually challenged and refuted.” Cufferi v. Royal Palm Dev. Co., 516 So. 2d 983, 984 (Fla. 4th DCA 1987). Thus, “ ‘[i]n order for a plaintiff ... to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the…
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Bristol v. Wells Fargo Bank, 137 So. 3d 1130 (Fla. 4th DCA 2014)…e are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted.’ ” Alejandre v. Deutsche Bank Trust Co. Ams., 44 So. 3d 1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co., 516 So. 2d 983, 984 (Fla. 4th DCA 1987)). “A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean, 79 So. 3d at 173. Standing may be established by either an assig…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Moore v. Morris, 475 So. 2d 666 (Fla. 1985)
- State v. Boyd, 369 So. 2d 432 (Fla. 2d DCA 1979)
- First Mortg. Invs. v. Boulevard Nat'l Bank OF Miami, 327 So. 2d 830 (Fla. 3d DCA 1976)
- O'Neal v. Brady, 476 So. 2d 294 (Fla. 3d DCA 1985)
- The Celotex Corp. v. Buildex, Inc., 476 So. 2d 294 (Fla. 3d DCA 1985)
- Bunner v. Fla. Coast Bank OF Coral Springs, N.A., 390 So. 2d 126 (Fla. 4th DCA 1980)
- Johnson v. Headley, 419 So. 2d 401 (Fla. 4th DCA 1982)
- Morton Aroll v. ITT Commercial Fin. Corp., 496 So. 2d 1011 (Fla. 3d DCA 1986)