CHESTER A. BROOKS AND ARLENE E. BROOKS, APPELLANTS,
v.
BANK OF AMERICA, N.A., SAN REMO HOMEOWNERS COMMUNITY ASSOCIATION, INC. AND UNKNOWN TENANT/OCCUPANT(S), APPELLEES
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The Fourth District Court of Appeal reversed a summary judgment foreclosure against borrowers who raised an affirmative defense that the lender failed to provide required notice of acceleration and right to cure before filing the foreclosure action. The court held that the lender failed to meet its burden of rebutting the legally sufficient affirmative defense.
The lender failed to establish summary judgment because it did not factually refute the borrowers' legally sufficient affirmative defense. The lender's affidavit contained no correspondence satisfying the notice requirement and made no mention of providing notice prior to acceleration, creating a genuine issue of material fact that precluded summary judgment.
[1] A party seeking summary judgment must factually refute alleged affirmative defenses or establish their legal insufficiency.
[2] A legally sufficient affirmative defense requires the movant to present summary judgment evidence demonstrating compliance with its terms.
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“Before a movant is entitled to summary judgment, it 'must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.'”
Establishes the legal standard that a summary judgment movant must satisfy regarding affirmative defenses
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Join FLexlaw to unlock all legal intelligenceChester and Arlene Brooks borrowed money secured by a mortgage. Bank of America filed a foreclosure action against the Borrowers. The Borrowers pleade…
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Chester and Arlene-Brooks- (the “Borrowers”) appeal the trial court’s order granting final summary judgment of foreclosure in favor of. Bank of America, N.A. (the “Lender”). The Borrowers argue the Lender failed to rebut their < affirmative defense of failure to comply with. condb tions precedent to foreclosure. We agree and reverse.
Before a movant' is entitled to summary judgment, it “ ‘must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.’ ” Jelic v. Citi- *620 Mortgage, Inc., 150 So.3d 1228, 1225 (Fla. 4th DCA 2014) (quoting Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995)). Here, the Borrowers pled the following affirmative defense:
NO NOTICE OF ACCELERATION: Plaintiff failed to give Defendant the thirty days written Notice of Acceleration and right to cure any Default as required by and/or that complies with the terms of the mortgage attached to the Complaint, prior to filing this foreclosure action.
We find that the Borrowers’ affirmative defense was legally sufficient and therefore the Lender was required to establish by summary judgment evidence that it complied with the mortgage by sending the requisite notice. DiSalvo v. SunTrust Mortg., Inc., 115 So.3d 438, 439 (Fla. 2d DCA 2013). The Lender’s affidavit did not attach any correspondence that would satisfy the notice requirement and the Lender’s affiant did not mention giving notice to the Borrowers prior to acceleration. Based on our de novo review of the summary judgment evidence, the Lender failed to establish it provided notice as required by the mortgage.
Because the Lender did not factually refute the Borrowers’ legally sufficient affirmative defense of failure to comply with conditions precedent, there was a disputed genuine issue of material fact preventing the entry of summary judgment. Cobbum v. Citimortgage, Inc., 158 So.3d 755, 758 (Fla. 2d DCA 2015). Accordingly, we reverse the final judgment of foreclosure and remand this case for further proceedings.
Reversed and remanded.
GERBER and LEVINE, JJ., concur.
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Citator
Authorities Cited
- Knight Energy Servs., Inc. v. Amoco OIL Co., 660 So. 2d 786 (Fla. 4th DCA 1995)
- DiSALVO v. Suntrust Mortg., Inc., 115 So. 3d 438 (Fla. 2d DCA 2013)
- Cobbum v. Citimortgage, Inc., 158 So. 3d 755 (Fla. 2d DCA 2015)