CHRISTOPHER GALLOWAY, ETC., ET AL., APPELLANTS,
v.
SUNTRUST BANK, ET AL., APPELLEES
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The Florida Fifth District Court of Appeal reversed a summary judgment foreclosure in favor of SunTrust Bank, holding that SunTrust failed to authenticate the acceleration letter required to establish compliance with the thirty-day notice condition precedent in the mortgage. The court held that unauthenticated documents cannot support summary judgment in foreclosure cases.
SunTrust failed to establish its right to foreclose because it did not authenticate the acceleration letter through a competent witness affidavit. Unauthenticated documents cannot be used to support summary judgment in foreclosure actions, and the trial court's summary judgment in favor of SunTrust was therefore improper.
[1] Summary judgment must be reversed if the slightest doubt exists as to a genuine issue of material fact.
[2] A party cannot satisfy the requirements for summary judgment by attaching unsworn or unauthenticated documents to a motion.
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Join FLexlaw to unlock all legal intelligence“To establish its right to foreclose in its summary judgment motion, SunTrust was required to, among other things, show it complied with the condition precedent in paragraph 22 of the mortgage.”
Establishes the foundational requirement for foreclosure summary judgment in this jurisdiction
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Join FLexlaw to unlock all legal intelligenceChristopher and Carmen Galloway obtained a mortgage from SunTrust Bank that included a condition precedent in paragraph 22 requiring thirty days' noti…
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Christopher M. Galloway and Carmen E. Galloway appeal the final judgment of foreclosure entered by the trial court in favor of SunTrust Bank (SunTrust) after the trial court granted SunTrust’s motion for summary judgment. The Galloways argue that SunTrust failed to conclusively show that there was no genuine issue of material fact as to whether SunTrust complied with the condition precedent to acceleration and foreclosure in paragraph 22 of the mortgage requiring thirty days’ notice prior to acceleration of the loan. We agree and reverse.
To establish its right to foreclose in its summary judgment motion, SunTrust was required to, among other things, show it complied with the condition precedent in paragraph 22 of the mortgage. DiSalvo v. SunTrust Mortg., Inc., 115 So.3d 438, 439 (Fla. 2d DCA 2013) (citing F.A. Chastain Constr., Inc. v. Pratt, 146 So.2d 910, 913 (Fla. 3d DCA 1962)). In support of its motion, SunTrust filed an affidavit of indebtedness; however, the affidavit did not *781address the acceleration letter. As such, the acceleration letter was unauthenticated and could not be used to support Sun-Trust’s motion for summary judgment. See Colon v. JP Morgan Chase Bank, NA, 162 So.3d 195, 198 (Fla. 5th DCA 2015) (citing Green v. JPMorgan Chase Bank, N.A., 109 So.3d 1285, 1288 n.2 (Fla. 5th DCA 2013)); Morrison v. U.S. Bank, N.A., 66 So.3d 387, 387 (Fla. 5th DCA 2011) (holding that bank’s filing of unauthenticated notice letter failed to support summary judgment where defendant denied receiving notice of default); Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011) (finding unauthenticated copies of default letters purportedly sent to defendant by bank were insufficient for summary judgment purposes (citing Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So.2d 617, 618 (Fla. 2d DCA 1997))); Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997) (“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).”).
In order to factually dispute Galloway’s denial of SunTrust’s compliance with paragraph 22 of the mortgage, SunTrust “needed only to have a competent witness execute a legally sufficient affidavit authenticating the letter, attach the letter to the affidavit, and then timely file the affidavit.” Colon, 162 So.3d at 199. Because it failed to do so, we are compelled to reverse the final judgment of foreclosure and remand for further proceedings.
REVERSED and REMANDED.
SAWAYA, BERGER and LAMBERT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bryson v. Branch Banking & Tr. Co., 75 So. 3d 783 (Fla. 2d DCA 2011)
- Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997)
- F. A. Chastain Constr., Inc. v. Pratt, 146 So. 2d 910 (Fla. 3d DCA 1962)
- DiSALVO v. Suntrust Mortg., Inc., 115 So. 3d 438 (Fla. 2d DCA 2013)
- Daeda v. Blue Cross & Blue Shield OF Fla., Inc., 698 So. 2d 617 (Fla. 2d DCA 1997)
- Cristobal Colon v. JP Morgan Chase Bank, NA, 162 So. 3d 195 (Fla. 5th DCA 2015)
- Morrison v. US Bank, 66 So. 3d 387 (Fla. 5th DCA 2011)
- Green v. Jpmorgan Chase Bank, N.A., 109 So. 3d 1285 (Fla. 5th DCA 2013)