MARIA MOJICA AND SAMUEL MOJICA, APPELLANTS,
v.
BANK OF AMERICA, N.A., ETC., ET AL., APPELLEES
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Homeowners appealed a summary judgment foreclosure, arguing the bank failed to provide notice of default and acceleration as required by the mortgage. The Fifth District reversed, finding the bank did not refute this affirmative defense and that alleged notice violations create a disputed issue of material fact precluding summary judgment.
The bank failed to refute the affirmative defense by affidavit or establish its legal insufficiency. An alleged failure to comply with mortgage notice requirements creates a disputed issue of material fact that precludes summary judgment of foreclosure.
[1] A plaintiff moving for summary judgment must factually refute affirmative defenses by affidavit or establish their legal insufficiency when the defendant pleads them.
[2] A failure to comply with mortgage notice requirements creates a disputed issue of material fact and precludes summary judgment of foreclosure.
Previewing 2 of 3 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“If [the defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency.”
States the legal standard that Bank of America must meet to overcome the Mojicas' affirmative defense of lack of notice.
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Join FLexlaw to unlock all legal intelligenceMaria and Samuel Mojica were borrowers under a mortgage with Bank of America. The mortgage contained a provision requiring the bank to provide notice …
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Maria Mojica and Samuel Mojica (“Appellants”) timely appeal the trial court’s summary final judgment of mortgage foreclosure in favor of Bank of America, N.A. (“Bank”). They argue that Bank failed to rebut their affirmative defense of lack of notice of default and acceleration.1 “If *110the defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency.” Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011). Based on a de novo review of the record before us, we find no evidence to indicate that Bank refuted Appellants’ affirmative defense. An alleged failure to comply with mortgage notice requirements creates a disputed issue of material fact and precludes summary judgment of foreclosure. Cobbum v. Citimortgage, Inc., 158 So.3d 755, 757-58 (Fla. 2d DCA 2015). Accordingly, we reverse the final judgment of foreclosure and remand, this case.
REVERSED and REMANDED.
LAWSON, C.J., SAWAYA and ORFINGER, JJ., concur.
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Citator
Authorities Cited
- Bryson v. Branch Banking & Tr. Co., 75 So. 3d 783 (Fla. 2d DCA 2011)
- Cobbum v. Citimortgage, Inc., 158 So. 3d 755 (Fla. 2d DCA 2015)