STELIAN LAZURAN, APPELLANT,
v.
CITIMORTGAGE, INC., DAVID STERN, P.A., UNKNOWN SPOUSE OF STELIAN LAZURAN, IF ANY, ADRIANA ANCUTA LAZURAN A/K/A ADRIANA LAZURAN, UNKNOWN SPOUSE OF ADRIANA ANCUTA LAZURAN A/K/A ADRIANA LAZURAN, IF ANY, ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS, THE BOULEVARD FOREST LAKE MANAGEMENT ASSOCIATION, INC., CITIBANK, N.A. SUCCESSOR BY MERGER TO CITIBANK, FEDERAL SAVINGS BANK, JOHN DOE, AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION, APPELLEES
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We reverse the circuit court’s final summary judgment of foreclosure against Ste-lian Lazuran (the “defendant”). Citimort-gage’s complaint alleged that all conditions precedent to the mortgage note’s acceleration had been fulfilled, and Citimortgage’s affidavit in support of its motion for summary judgment stated “[t]hat each and every allegation in the Complaint is true.” Such a conclusory allegation is insufficient to refute the defendant’s affirmative de*190fense that Citimortgage failed to provide him with notice of the acceleration pursuant to the procedures specified in paragraph 22 of the mortgage. Therefore, reversal is required. See Frost v. Regions Bank, 15 So.3d 905, 906-07 (Fla. 4th DCA 2009) (“Because the bank did not meet its burden to refute the Frosts’ lack of notice and opportunity to cure defense, the bank is not entitled to final final summary judgment of foreclosure.”).
Reversed.
POLEN and LEVINE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115 (Fla. 2d DCA 2011)…SBC Mortg. Servs., Inc., 62 So. 3d 680, 682 (Fla. 2d DCA 2011) (reversing summary judgment for plaintiffs failure to address in its motion for summary judgment and affidavits the affirmative defense of lack of notice); Lazuran v. Citimortgage, Inc., 35 So. 3d 189, 189-90 (Fla. 4th DCA 2010) (reversing summary judgment where the plaintiff failed to refute the affirmative defense of lack of notice). For this reason, summary judgment was premature. Therefore, we reverse the final judgment of foreclosure and rem…
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Godshalk v. Countrywide Home Loans Servicing, L.P., 81 So. 3d 626 (Fla. 5th DCA 2012)…every alie- [*629] gation contained in the Complaint to Foreclose Mortgage are true.”2 It is clear under Florida law that an affidavit merely-attesting that a pleading is “true” cannot defeat a summary judgment motion. Lazuran v. Citimortgage, Inc., 35 So. 3d 189 (Fla. 4th DCA 2010). Rule 1.510(e) requires: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testif…
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Shiloh Toler and Troy Toler v. Bank OF Am., 78 So. 3d 699 (Fla. 4th DCA 2012)…gument are distinguishable because, in those cases, the defendants actually raised affirmative defenses to pending summary judgment motions, and the appeals were from grants of summary judgment against them. See, e.g., Lazuran v. Citimortgage, Inc., 35 So. 3d 189 (Fla. 4th DCA 2010) (reversing final summary judgment of foreclosure where the defendant raised the affirmative defense of unfulfilled contractual condition precedent); Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2d DCA 2010) (reversing summary…
Authorities Cited
- Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009)
- Dwon Kimble v. State, 15 So. 3d 905 (Fla. 3d DCA 2009)