ARTURO PITA AND AIDA PITA, APPELLANTS,
v.
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE, APPELLEE
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The court reversed a summary judgment in a mortgage foreclosure case because genuine issues of material fact existed regarding whether the borrowers had made all required payments, precluding summary judgment as a matter of law.
Summary judgment for foreclosure is improper when the defendant raises payment as an affirmative defense supported by a counter-affidavit creating a genuine issue of material fact about whether payment was made.
[1] On a motion for summary judgment in a foreclosure action, when the defendant submits a counter-affidavit asserting payment and creating a genuine issue of material fact,…
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Join FLexlaw to unlock all legal intelligenceState Street Bank sought foreclosure against the Pitas, who submitted an affidavit asserting they had made all payments due and that the bank failed t…
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PER CURIAM.
This is an appeal from a final summary judgment of foreclosure where appellants raised payment as an affirmative defense. In support of its motion for summary judgment, the appellee bank submitted an affidavit of indebtedness. In response, appellants filed a counter affidavit asserting that they had made all payments due and that the bank had failed to properly credit their account. It is clear from these countervailing affidavits that a genuine issue of material fact exists as to whether payment was made by appellants. On a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses. E.g., Budweiser-Busch Distrib. Co. v. Keystone Lines, a Div. of Transcon Lines, 607 So. 2d 503, 505 (Fla. 1st DCA 1992); Rice v. Mercy Hosp. Corp., 275 So. 2d 566 (Fla. 3d DCA 1973).
Thus, we hold that the entry of final summary judgment was error where a genuine issue of material fact remains unresolved. E.g., Moore v. Morris, 475 So. 2d 666 (Fla.1985); Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Perry & Co. v. Union Am. Ins. Co., 664 So. 2d 1036 (Fla. 3d DCA 1995).
Accordingly, we reverse and remand this case for further proceedings consistent with this opinion.
Reversed and remanded.
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Hernandez v. United Auto. Ins. Co., Inc., 730 So. 2d 344 (Fla. 3d DCA 1999)…v. Morris, 475 So. 2d 666, 668 (Fla. 1985). In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the ■witnesses nor weigh the evidence. See Pita v. State Street Bank and Trust Co., 666 So. 2d 268, 268 (Fla. 3d DCA 1996) (holding that “[o]n a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses.”); Juno Indus., Inc. v. Heery Int'l, 6…
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Garcia v. First Cmty. Ins. Co., 241 So. 3d 254 (Fla. 3d DCA 2018)
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Sasson v. The Rockwell Mfg. Co. a foreign corp., 715 So. 2d 1066 (Fla. 3d DCA 1998)…rden. See id. at 43-44. When considering a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses. See Pita v. State St. Bank and Trust Co., 666 So. 2d 268, 268 (Fla. 3d DCA 1996); Juno Indus., Inc. v. Heery Int'l, 646 So. 2d 818, 822 (Fla. 5th DCA 1994); Shapiro v. Barron, 538 So. 2d 1319, 1320 (Fla. 4th DCA 1989); State Farm Mut. Auto. Ins. Co. v. Gant, 460 So. 2d 912, 913 (Fla. 2d DCA 1984). We con…
Previewing 3 of 8 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)
- S. Bell Tel. & Tel. Co. v. Cnty. OF Dade, 275 So. 2d 566 (Fla. 3d DCA 1973)
- Budweiser-Busch Distrib. Co., Inc. v. Keystone Lines, 607 So. 2d 503 (Fla. 1st DCA 1992)
- Perry & Co. v. Union Am. Ins. Co., 664 So. 2d 1036 (Fla. 3d DCA 1995)