KENNETH PEARLSTEIN AND MARILYN PEARLSTEIN, HIS WIFE, APPELLANTS,
v.
PENNSYLVANIA NATIONAL BANK AND TRUST COMPANY, KAREN E. BEZNER, COUNTRY CLUB PROPERTY OWNERS ASSOCIATION, INC., A FLORIDA NOT-FOR-PROFIT CORPORATION, APPELLEES
Explore caselaw by topic → Browse Affirmative Defense Of Payment cases and more on FLexlaw
PER CURIAM.
Appellants, Kenneth Pearlstein and Marilyn Pearlstein, appeal from a summary judgment of foreclosure entered in favor of appel-lee, Pennsylvania National Bank and Trust Company, and from an order denying their motion for rehearing. We treat appellants’ appeal as a nonfinal appeal in light of their unresolved pending counterclaim. See Fla. R.App.P. 9.130(a)(3)(C)(iv).
We reverse the summary judgment of foreclosure finding that there are unresolved issues of material fact on the affirmative defense of payment of the debt. See Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Landers v. Milton, 370 So. 2d 368 (Fla.1979); Fine Arts Museums Found. v. First Nat'l in Palm Beach, a Div. of First Union Nat’l Bank of Fla., 633 So. 2d 1179 (Fla. 4th DCA), review denied, 641 So. 2d 1346 (Fla.1994). Further, the record reflects that appellee’s affidavits have not sufficiently rebutted the appellants’ affirmative defense of payment. See Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730 (Fla.1991).
REVERSED AND REMANDED.
WARNER, FARMER and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Zabler v. Resolution Tr. Corp. for Sec. First Fed. Sav. & Loan Ass'n, 756 So. 2d 124 (Fla. 4th DCA 2000)…fact concerning the existence of a default in payment and whether interest due under the note was properly calculated. See Fatherly v. California Fed. Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997); Pearlstein v. Pennsylvania Nat’l Bank & Trust Co., 668 So. 2d 330 (Fla. 4th DCA 1996); and Bakst v. F.D.I.C., 617 So. 2d 402 (Fla. 3d DCA 1993). [*125] The remaining issues raised by the appellant are without merit. Reversed and remanded for further proceedings. STONE, HAZOURI, JJ., and STETTIN, HERBERT, Senio…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Irving W. Landers et ux. v. Adelle L. Milton, 370 So. 2d 368 (Fla. 1979)
- State v. Vamper, 579 So. 2d 730 (Fla. 1991)
- Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730 (Fla. 1991)
- The Fine Arts Museums Found. v. First Nat'l IN Palm Beach, 633 So. 2d 1179 (Fla. 4th DCA 1994)