CARMEN A. RAMOS, ET AL., APPELLANTS,
v.
CITIMORTGAGE, INC., APPELLEE
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The Ramoses appealed a summary judgment of foreclosure, arguing that CitiMortgage failed to comply with a condition precedent to foreclosure—proper delivery of a default notice as required by the mortgage. The court reversed, holding that CitiMortgage's summary judgment evidence failed to conclusively disprove the Ramoses' affirmative defenses regarding non-receipt and improper delivery of the notice.
The court reversed the summary judgment because CitiMortgage failed to meet its burden of conclusively disproving the affirmative defenses. When a mortgage requires default notice as a condition precedent to foreclosure and the defendant pleads both non-compliance and non-receipt, the plaintiff must establish through summary judgment evidence either that it complied with the notice provisions or that the defendant received the notice.
[1] A plaintiff moving for summary judgment must conclusively refute all affirmative defenses raised by the defendant.
[2] Where a mortgage requires a default notice as a condition precedent to foreclosure, and the defendant alleges non-compliance and non-receipt of notice, the plaintiff must…
Previewing 2 of 5 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“where affirmative defenses are plead [sic], the movant for summary judgment is similarly burdened and must conclusively refute the affirmative defenses.”
Establishes the legal standard that a moving party seeking summary judgment must disprove affirmative defenses, not merely establish its own case.
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Join FLexlaw to unlock all legal intelligenceCarmen Ramos executed a promissory note secured by a mortgage on Miami property in August 2005. When she defaulted in April 2009, CitiMortgage filed a…
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The Ramoses, Defendants below, appeal a final summary judgment of foreclosure in favor of CitiMortgage, Plaintiff below. We reverse because the summary judgment evidence did not rebut the Ramoses’ affirmative defenses, which alleged they had not received a default notice and that the default notice allegedly sent by CitiMort-gage was not properly delivered as required by the express provisions of its mortgage.
I. Facts
Defendant, Carmen Ramos, executed a promissory note in favor of CitiMortgage in August 2005. The note was secured by a mortgage encumbering property in Miami, Florida.
When Mrs. Ramos defaulted on her loan in April 2009, CitiMortgage brought the instant foreclosure action; a copy of the note and mortgage was attached to Citi-Mortgage’s complaint.
Pursuant to Paragraph 22 of the mortgage, CitiMortgage was required to send Mrs. Ramos written default notice prior to accelerating the amounts due under the note and foreclosing on the mortgage. The mortgage provides for specific information to be included in the default notice, such as notice of the default and how and when the default can be cured.
Pursuant to Paragraph 15 of the mortgage, all notices sent by first class mail are required to be sent to the address of the mortgaged property unless the borrower has provided CitiMortgage with an alternate address. Alternatively, Paragraph 15 allows CitiMortgage to comply with the notice requirements, other than via first class mail, by actually delivering such notices to the property address.
The Ramoses filed a motion to dismiss CitiMortgage’s foreclosure complaint, alleging, among other things, that CitiMort-gage had failed to comply with an express condition precedent to filing the lawsuit. Specifically, citing the relevant language of the mortgage, the Ramoses argued that CitiMortgage had failed to send the required default notice to Mrs. Ramos at the mortgaged property .address.
After the motion to dismiss was denied, the Ramoses filed their answer and affirmative defenses. The Ramoses denied Ci-tiMortgage’s allegation that all conditions precedent had been performed. Also, the Ramoses asserted, as an affirmative defense, that CitiMortgage failed' to deliver the required default notice to Mrs. Ramos, *128and therefore had not complied with a condition precedent to foreclosure. The Ramoses also asserted they never received the default notice.
CitiMortgage filed a reply to the affirmative defenses, attaching a copy of the default notice it purportedly had mailed to Mrs. Ramos in October 2010. This default notice indicated it had been mailed to a post office box in Coral Gables, Florida, rather than to the mortgaged property address.
CitiMortgage then filed a motion for summary judgment. CitiMortgage’s summary judgment motion was supported by two affidavits, one of which attached a copy of the October 2010 default notice. The Ramoses filed no affidavits or other summary judgment evidence.
At the summary judgment hearing, the Ramoses argued that CitiMortgage had failed to establish an absence of a genuine issue of fact, i.e., that CitiMortgage had complied with the mortgage’s default notice requirements. The trial court disagreed and entered final summary judgment of foreclosure for CitiMortgage. We reverse.
II. Analysis
We review a trial court’s entry of a final summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Rodriguez v. Sec. Nat’l Ins. Co., 138 So.3d 520, 522 (Fla. 3d DCA 2014). For a plaintiff to be entitled to a summary judgment, the plaintiff must establish that no genuine issue of material fact exists. Muñoz Hnos, S.A. v. Editorial Televisa Int’l, S.A., 121 So.3d 100,103 (Fla. 3d DCA 2013). Additionally, the summary judgment evidence must disprove all affirmative defenses raised by the defendant. GMT Constr., Inc. v. Gulf-side Supply, Inc., 116 So.3d 515, 517 (Fla. 3d DCA 2013) (“[W]here affirmative defenses are plead [sic], the movant for summary judgment is similarly burdened and must conclusively refute the affirmative defenses.” (citing Calarese v. Weissfisch, 87 So.3d 1225, 1227 (Fla. 3d DCA 2012))).
Where, as here, a mortgage contains a provision which specifically requires a default notice be sent to the borrower prior to foreclosure, and the defendant expressly pleads both that (a) the plaintiff has failed to comply with such condition precedent to foreclosure, and (b) the defendant has not received the notice, for the trial court to enter summary judgment, the plaintiff must establish — through summary judgment evidence — either that (1) the plaintiff complied with the mortgage documents’ notice provisions, or (2) the defendant received the default notice. See DiSalvo v. SunTrust Mortg., Inc., 115 So.3d 438, 439^0 (Fla. 2d DCA 2013) (citing Morrison v. U.S. Bank, N.A., 66 So.3d 387, 387 (Fla. 5th DCA 2011) (concluding the bank’s filing of an unathenticated notice letter did not support summary judgment where the defendant asserted she had not received a notice of default)); Bryson v. Branch Banking & Trust Co., 75 So.3d 783 (Fla. 2d DCA 2011) (reversing grant of summary judgment where the plaintiff asserted affirmative defense that bank had not complied with condition precedent and nothing established bank gave homeowner notice of default as required by the mortgage).
In this case, because the Ramoses’ affirmative defenses alleged that CitiMortgage failed to comply with conditions precedent and that they had not received the required default notice, the summary judgment evidence had to conclusively disprove those allegations. See GMT Constr., Inc., 116 So.3d at 517.
While CitiMortgage’s affidavit attached a copy of the default notice mailed *129to Mrs. Ramos, the default notice was addressed to a post office box in Coral Gables, rather than the address of the mortgaged property as required in the mortgage. There was no summary judgment evidence indicating that the Ramoses provided the alternative address to Citi-Mortgage as contemplated in Paragraph 15 of the Mortgage. Alternatively, there was no record evidence that the Ramoses had actually received the default notice. Hence, CitiMortgage did not meet its burden to disprove the Ramoses’ affirmative defenses so as to be entitled to summary judgment.
CitiMortgage also argues that CitiMort-gage should be excused from complying with the default notice condition precedent required by its mortgage because such compliance would have been futile. Citi-Mortgage asserts that if the Ramoses were unable to meet their monthly note obligation of around $2000, they certainly would not have been able to cure the default by paying the almost $58,000 in accrued amounts due under the note.
While CitiMortgage’s argument might have practical merit, the trial court obviously never reached the “futility” issue, and, on this record, we certainly are unable to conclude, as a matter of law, that sending the required default notice to the Ramoses as required by the mortgage would have been a futile gesture.
III. Conclusion
Accordingly, we reverse the final judgment of foreclosure and remand the case for proceedings consistent with this opinion.
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Martins v. PNC Bank, 170 So. 3d 932 (Fla. 5th DCA 2015)…ed. When a mortgage contains a provision that requires the lender to send notice to the borrower, the lender must establish that it complied with the provisions of the mortgage or that the borrower received such notice. Ramos v. CitiMortgage, Inc., 146 So. 3d 126, 128 (Fla. 3d DCA 2014). When the terms of the mortgage provide that the lender complies with the notice requirement by mailing the notice, there is no genuine issue of material fact as to the notices sent if the lender establishes via an affidavit…
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Desvarieux v. Bridgestone Retail Operations, LLC, 300 So. 3d 723 (Fla. 3d DCA 2020)…l court granted Bridgestone’s motion for summary judgment and entered final judgment in its favor. This appeal followed. III. STANDARD OF REVIEW We review a trial court’s entry of a final summary judgment order de novo. Ramos v. Citimortgage, Inc., 146 So. 3d 126, 128 (Fla. 3d DCA 2014). Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). See Gidwani v. Roberts, 248 So. 3d 203, 206 (Fla…
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Harper v. HSBC Bank USA, 148 So. 3d 1285 (Fla. 1st DCA 2014)…clude the entry of summary judgment where a bank’s complaint, motion for summary judgment, and affidavits fail to refute a defendant’s assertion of not being given the requisite notice and opportunity to cure. See, e.g., Ramos v. Citimortgage, Inc., 146 So. 3d 126 (Fla. 3d DCA 2014); Patel v. Aurora Loan Servs., LLC, — So. 3d-, 2014 WL 1612603, 39 Fla. L. Weekly D840 (Fla. 4th DCA 2014); DiSalvo v. SunTrust Mortg., Inc., 115 So. 3d 438, 441 (Fla. 2d DCA 2013). In this case, Ms. Harper’s Answer to the Complai…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Volusia Cnty. v. Aberdeen AT Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)
- Bryson v. Branch Banking & Tr. Co., 75 So. 3d 783 (Fla. 2d DCA 2011)
- DiSALVO v. Suntrust Mortg., Inc., 115 So. 3d 438 (Fla. 2d DCA 2013)
- Morrison v. US Bank, 66 So. 3d 387 (Fla. 5th DCA 2011)
- MUÑOZ Hnos, S.A. v. Editorial Televisa Int'l, S.A., 121 So. 3d 100 (Fla. 3d DCA 2013)
- Calarese v. Weissfisch, 87 So. 3d 1225 (Fla. 3d DCA 2012)
- Rodriguez v. Sec. Nat'l Ins. Co., Inc., 138 So. 3d 520 (Fla. 3d DCA 2014)
- GMT Constr., Inc. v. Gulfside Supply, Inc., 116 So. 3d 515 (Fla. 3d DCA 2013)