PAUL B. JOHNSON AND CINDY L. JOHNSON, APPELLANTS,
v.
CLAIMS PREVENTON & MANAGEMENT SERVICES, INC., APPELLEE
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The court reversed a summary judgment foreclosure decree because the trial court failed to address the defendants' affirmative defenses of fraud and illegality. The court held that a moving party seeking summary judgment in a foreclosure action must either disprove affirmative defenses with evidence or establish their legal insufficiency, and cannot simply ignore them.
A court cannot grant summary judgment in a foreclosure action when the defendant asserts legally sufficient affirmative defenses that have not been rebutted. The moving party must either disprove the affirmative defenses with evidence or demonstrate their legal insufficiency.
[1] A party seeking summary judgment must disprove all affirmative defenses raised by the opposing party or establish their legal insufficiency.
[2] A party can defend against liability on a claim by showing they were fraudulently induced to enter into the contract.
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Join FLexlaw to unlock all legal intelligence“It is well established that fraud can be a valid defense in a foreclosure action.”
Establishes that fraud is a cognizable defense in foreclosure cases
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Join FLexlaw to unlock all legal intelligenceAppellees (Claims Prevention & Management Services, Inc.) filed a foreclosure complaint against the Johnsons. The Johnsons answered with affirmative d…
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PER CURIAM.
The final judgment of foreclosure, entered pursuant to appellee’s motion for summary judgment, is reversed. Following appellants’ answer to the complaint for foreclosure, appellee responded, denying the affirmative defenses asserted. These affirmative defenses, which included allegations of fraud and illegality, were not addressed in the motion for summary judgment. No where in the record is it indicated that appellee either disproved the affirmative defenses by evidence, or demonstrated to the trial court that the affirmative defenses were legally insufficient.
“It is well established that fraud can be a valid defense in a foreclosure action.” Norris v. Paps, 615 So. 2d 735 (Fla. 2d DCA 1993). “The issue of fraud generally should not be disposed of by summary judgment,” Barrios v. Duran, 496 So. 2d 239 (Fla. 3d DCA 1986), cited in Sunchase Apartments v. Sunbelt Service Corp., 596 So. 2d 119 (Fla. 1st DCA 1992). “A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.” Haven Federal Savings & Loan Association v. Kirian, 579 So. 2d 730 (Fla.1991). “When, as here, the non-moving party has raised affirmative defenses, it is incumbent upon the moving party to ‘either disprove [those] affirmative defenses or establish their legal insufficiency.’ ” Parker v. Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983) (citation omitted). See also Cufferi v. Royal Palm Development Co., 516 So. 2d 983 (Fla. 4th DCA 1987); Ton-Will Enterprises, Inc. v. T & J Losurdo, Inc., 440 So. 2d 621 (Fla. 2d DCA 1983).
REVERSED and REMANDED for further proceedings consistent with this opinion.
JOANOS, WOLF and BENTON, JJ., concur.
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Hosp. Correspondence Corp. v. McRAE, 682 So. 2d 1177 (Fla. 5th DCA 1996)…factual support for or the legal insufficiency of its affirmative defenses. Fla. R. Civ. P. 1.510(c); Delandro v. America’s Mortgage Servicing, Inc., 674 So. 2d 184, 186-87 (Fla. 3d DCA 1996); Johnson v. Claims Prevention & Management Servs., Inc., 673 So. 2d 558 (Fla. 1st DCA 1996); Gulf Ins. Co. v. Stofman, 664 So. 2d 1083 (Fla. 4th DCA 1995); see also Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786, 788 (Fla. 4th DCA 1995), review denied, 670 So. 2d 937 (Fla.1996); Board of Trustees of the Int…
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Hinton v. Brooks, 820 So. 2d 325 (Fla. 5th DCA 2001)…kses, were not entitled to judgment in their favor as a matter of law. Affirmative defenses based on allegations of - fraud are generally considered valid defenses to a mortgage foreclosure action. Johnson v. Claims Prevention & Mgmt. Servs., Inc., 673 So. 2d 558 (Fla. 1st DCA 1996); Norris v. Paps, 615 So. 2d 735, 737 (Fla. 2d DCA 1993) (citing Lake Region Hotel Co. v. Gollick, 110 Fla. 324, 149 So. 204 (1933)); see also Najera v. Nationsbank Trust Co., N.A., 707 So. 2d 1153 (Fla. 5th DCA 1998). Moreover, a…
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Dotter v. Tex. Commerce Bank Nat'l Ass'n, 679 So. 2d 1215 (Fla. 4th DCA 1996)…he affirmative defenses, demonstrated their legal insufficiency, or liquidated the amount of statutory or actual damages that would have partially offset the debt owed to appellee. See, e.g., Johnson v. Claims Prevention & Management Services, Inc., 673 So. 2d 558 (Fla. 1st DCA 1996). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. STEVENSON and GROSS, JJ., and GROSSMAN, MELVIN B., Associate Judge, eoncur.…
Authorities Cited
- State v. Vamper, 579 So. 2d 730 (Fla. 1991)
- Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730 (Fla. 1991)
- Eligio Barrios & Goldstone Co., N.V. v. Duran, 496 So. 2d 239 (Fla. 3d DCA 1986)
- Cufferi v. Royal Palm Dev. Co., Inc., 516 So. 2d 983 (Fla. 4th DCA 1987)
- Bismark Diaz & Bis D. Corp. v. Piquette, 496 So. 2d 239 (Fla. 3d DCA 1986)
- Norris v. Paps, 615 So. 2d 735 (Fla. 2d DCA 1993)
- Parker v. The Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983)
- Sunchase Apts. v. Sunbelt Serv. Corp., 596 So. 2d 119 (Fla. 1st DCA 1992)
- Ton-Will Enters., Inc. v. T & J Losurdo, Inc., 440 So. 2d 621 (Fla. 2d DCA 1983)