JORGE A. CERRON, APPELLANT,
v.
GMAC MORTGAGE, LLC, APPELLEE

Fla. 2d DCA | 2012-07-18
No. 2D11-3425
SILBERMAN, C.J., and CRENSHAW, J., Concur.
93 So. 3d 456 Florida District Court of Appeal, Second District (2012) Positive Treatment
Cited by 8 cases

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Synopsis

Jorge Cerrón appealed a summary judgment of foreclosure entered against him by GMAC Mortgage, LLC. The court reversed because GMAC failed to refute Cerrón's affirmative defense that the lender had not provided the contractually required thirty-day notice of default before accelerating the loan.


Holding

Yes. The court reversed the summary judgment because a plaintiff moving for summary judgment in a foreclosure action must either conclusively refute the factual bases for the defendant's affirmative defenses or show that the defenses are legally insufficient. GMAC bore the burden of showing it had satisfied the condition precedent of providing notice, and it failed to do so.


Headnotes

[1] A party moving for summary judgment must refute the nonmoving party's affirmative defenses.

[2] A plaintiff moving for summary judgment must either conclusively refute the factual bases for the defendant's affirmative defenses or show that the defenses are legally i…

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Key Quotes

“a plaintiff moving for summary judgment must refute the nonmoving party's affirmative defenses”

Establishes the fundamental burden on the moving party in summary judgment proceedings involving affirmative defenses

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Facts & Procedural History

GMAC filed a complaint to foreclose a mortgage requiring thirty days' written notice of default before acceleration. Cerrón filed a pro se answer alle…

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Opinion of the Court
NORTHCUTT, Judge.

NORTHCUTT, Judge.

Jorge Cerrón, pro se, appeals a final summary judgment of foreclosure on a mortgage in favor of GMAC Mortgage, LLC, the successor to the original lender. We reverse because GMAC failed to refute Cerron’s affirmative defense alleging lack of notice.

GMAC filed a complaint seeking to foreclose a mortgage given by Cerrón, and it alleged generally that all conditions precedent to acceleration had been performed or had occurred. The complaint attached a copy of the mortgage, paragraph 22 of which required the lender to give thirty days’ written notice of default prior to acceleration. Cerrón filed a pro se answer, which was not a model pleading. The answer set forth several pages of narrative in opposition to the foreclosure complaint and then alleged four affirmative defenses. The first affirmative defense asserted that GMAC failed to give timely notice of default and of the lender’s intent *457to accelerate as required by the mortgage, note, and Florida law. Cerron’s answer included a plea for the court to dismiss the action.

GMAC subsequently filed a motion for summary judgment and asserted, in part, that Cerron’s affirmative defenses were legally insufficient. In support of its motion, GMAC filed an affidavit setting forth the amounts due and owing and an affidavit regarding attorney’s fees and costs. It subsequently filed a notarized, recorded document recounting that the mortgage had been assigned to GMAC on a date just prior to the filing of the complaint. GMAC also filed the note that was indorsed in blank. None of GMAC’s filings specifically addressed or refuted Cerron’s affirmative defenses.

The circuit court denied Cerron’s motion to dismiss and directed him to file an amended answer, which he did. In the amended answer, Cerrón specifically alleged as his seventh affirmative defense that GMAC failed to give a notice of default and that it thus failed to comply with a contractual condition precedent. GMAC filed updated affidavits of amounts due and attorney’s fees, but it never addressed Cerron’s affirmative defenses, either by affidavit or by memorandum in support of summary judgment.

On appeal, Cerrón argues that the circuit court erred in granting summary judgment when GMAC failed to refute his affirmative defenses. Based on our de novo review of the summary judgment, we agree. See Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117 (Fla. 2d DCA 2011) (“The standard of review on a summary judgment is de novo.”). The party moving for summary judgment must show that there are no disputed issues of material fact and that it is entitled to judgment as a matter of law. Id. at 1116-17 (citing Fla. R. Civ. P. 1.150(c)). In addition, a plaintiff moving for summary judgment must refute the nonmoving party’s affirmative defenses. Id.; see also Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So.3d 251, 253 (Fla. 2d DCA 2011).

On appeal, GMAC maintains that Cer-rón had the burden to file an affidavit stating that he never received a notice of default, at which point GMAC would have been required to refute the contention with contrary evidence. That is incorrect. A plaintiff moving for summary judgment must either conclusively refute the factual bases for the defendant’s affirmative defenses or show that the defenses are legally insufficient. Coral Wood Page, 71 So.3d at 253. As in Taylor and Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011), when Cerrón alleged GMAC’s failure to provide a contractually required notice of default, GMAC’s burden on summary judgment was to show that it had satisfied this condition precedent. It failed to do so.

Reversed and remanded.

SILBERMAN, C.J., and CRENSHAW, J., Concur.


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Citator

Cited By

  • DiSALVO v. Suntrust Mortg., Inc., 115 So. 3d 438 (Fla. 2d DCA 2013)
    …position to the [motion for summary judgment].” This argument misses the mark because there is no requirement for a party to file a competing affidavit or any other “materials” to defeat a motion for summary judgment. See Cerron v. GMAC Mortg., LLC, 93 So. 3d 456, 457 (Fla. 2d DCA 2012): GMAC maintains that Cerrón had the burden to file an affidavit stating that he never received a notice of default, at which point GMAC would have been required to refute the contention with contrary evidence. That is incorr…
  • Gator Boring & Trenching, Inc. v. Westra Constr. Corp., 210 So. 3d 175 (Fla. 2d DCA 2016)
    …805 So. 2d 975, 977 (Fla. 2d DCA 2001). On a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that it is entitled to summary judgment as a matter of law. [*182] Cerron v. GMAC Mortg., LLC, 93 So. 3d 456, 457 (Fla. 2d DCA 2012). Until the moving party meets this burden, there is no duty on the nonmoving party to demonstrate the existence of a genuine issue of material fact. Smith, 805 So. 2d at 977. Further, “[i]f the record reflects the existence o…
  • Tm Wireless Commc'n Servs. v. All Commerce, 246 So. 3d 541 (Fla. 3d DCA 2018)
    …ow that there are no disputed issues of material fact and that it is entitled to judgment as a matter of law. In addition, a plaintiff moving for summary judgment must refute the nonmoving party’s affirmative defenses.” Cerron v. GMAC Mortg., LLC, 93 So. 3d 456, 457 (Fla. 2d DCA 2012). “Our standard of review is de novo, and we view the facts in the light most favorable to . . . the non-moving party below.” Juarez v. New Branch Corp., 67 So. 3d 1159, 1160 (Fla. 3d DCA 2011). Discussion TM Wireless conten…

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