JOANNE FINNEGAN, APPELLANT,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-R11, APPELLEE
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Appellant Finnegan challenges a summary judgment foreclosure entered against her by Deutsche Bank. The court reversed, finding that material issues of fact exist regarding whether the bank satisfied contractual conditions precedent to foreclosure, specifically the requirement to provide proper notice of default.
Material issues of fact remain as to whether Deutsche Bank satisfied the condition precedent of providing proper notice of default. The summary judgment in favor of Deutsche Bank was improper because unsworn documents cannot be considered on a motion for summary judgment, and Deutsche Bank's affidavit did not address compliance with the notice provisions.
[1] A summary judgment of foreclosure is improper when the opposing party raises a material issue of fact regarding the satisfaction of contractual conditions precedent to fo…
[2] Unsworn documents attached to a motion for summary judgment, without more, do not satisfy the procedural requirements for summary judgment evidence.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Merely attaching documents which are not 'sworn to or certified' to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla.R.Civ.P. 1.510(e).”
Establishes that unsworn documents cannot be used to support summary judgment, a key reason Deutsche Bank's unsworn letters were insufficient.
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Join FLexlaw to unlock all legal intelligenceFinnegan defaulted on a promissory note secured by a mortgage held by Deutsche Bank. Deutsche Bank filed a foreclosure complaint alleging all conditio…
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Appellant challenges the final summary judgment of foreclosure entered by the trial court. She claims that her answer *1094and opposition affidavit raised material issues of fact as to whether the appellee satisfied the contractual conditions precedent to foreclosure. We agree that material issues of fact remain and we reverse the summary judgment.
Appellee, Deutsche Bank, filed a complaint alleging that appellant, Finnegan, had failed to make payments on a promissory note and sought foreclosure of the mortgage securing the note. In the complaint, it alleged that all conditions precedent to the acceleration of the mortgage note and foreclosure had occurred. Finnegan filed an answer specifically denying that she had received notice of the default in accordance with the terms of the mortgage. Deutsche Bank then filed a motion for summary judgment. Its affidavit in support did not mention the conditions precedent. Finnegan filed an affidavit in opposition again swearing that she had received no notice of default in accordance with the mortgage provisions. The bank also filed copies of letters allegedly sent to Finnegan but these were not sworn. The trial court eventually entered summary judgment in favor of the bank.
Based upon this record, a material issue of fact remains as to whether the bank satisfied a condition precedent by giving the proper pre-suit notice, as required by sections 15, 20, and 22 of the mortgage. Section 20 provides:
Neither Borrower nor Lender may commence ... any judicial action ... until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.... The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20.
Finnegan alleged in her answer to the complaint and again in her affidavit in opposition to the motion for summary judgment that she did not receive notices in compliance with these sections. While the bank filed copies of letters allegedly sent to her, these were not sworn and could not be considered on a motion for summary judgment. “Merely attaching documents which are not ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla.R.Civ.P. 1.510(e).” Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997). The affidavit filed by the bank did not address the issue of compliance with the notice provisions of the mortgage. Therefore, an issue of fact remains as to whether the bank fulfilled the condition precedent to foreclose the mortgage.
Because a material issue of fact remains, we reverse the summary judgment and remand for further proceedings.
STEVENSON and TAYLOR, JJ., concur.
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DiSALVO v. Suntrust Mortg., Inc., 115 So. 3d 438 (Fla. 2d DCA 2013)…idavit of a record custodian or other proper person attesting to their authenticity or correctness. Bryson v. Branch Banking & Trust Co., 76 So. 3d 783, 786 (Fla. 2d DCA 2011) (citations omitted); see also Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So. 3d 1093, 1094 (Fla. 4th DCA 2012) (‘While the bank filed copies of letters allegedly sent to her, these were not sworn and could not be considered on a motion for summary judgment.”); Morrison v. U.S. Bank, N.A., 66 So. 3d 387, 387 (Fla. 5th DCA 2011) (hold…
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Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696 (Fla. 4th DCA 2012)…h that the record would have no genuine issue of [*699] material fact where it did not address the notice of acceleration in the motion for summary judgment or accompanying affidavits.” Id. at 455; see also Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So. 3d 1093 (Fla. 4th DCA 2012) (reversing summary judgment where borrower filed an answer specifically denying that she had received notice of the default, the bank’s affidavit in support of summary judgment did not mention the conditions precedent, and the ba…
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Freiday v. Onewest Bank, FSB, 162 So. 3d 86 (Fla. 4th DCA 2014)…urt, “ ‘[mjerely attaching documents which are not ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).’ ” Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So. 3d 1093, 1094 (Fla. 4th DCA 2012) (quoting Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997)). In Finnegan, the bank filed a motion for summary judgment and later filed copies of unsworn default letters that had allegedly be…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997)