RALPH W. HAREN AND THELMA G. HAREN, HIS WIFE, APPELLANTS,
v.
RUFUS C. SUNDIE, APPELLEE
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The court held that a genuine issue of material fact existed regarding the defendants' affirmative defense of payment, precluding summary judgment.
Plaintiff sought to foreclose a mortgage, and the defendants raised an affirmative defense of payment, alleging the indebtedness was discharged by a t…
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The defendants have appealed from a summary final judgment in an action to foreclose a mortgage. It conclusively appears from the pleadings, depositions, answers to interrogatories, and affidavits that there is no genuine issue as to the allegations of the plaintiff’s complaint. There does appear to be a genuine issue as to the allegation of the defendants’ affirmative defense of payment.
The record when considered with every inference against the plaintiff as the moving party upon the motion for summary judgment does not conclusively refute the defendants’ allegation that the indebtedness was discharged in whole or in part by a transfer of corporate stock to persons who were holders of the note and mortgage before the latter were acquired by the plaintiff. The plaintiff-appellee is an attorney who acted as attorney for the corporation which had issued the stock in *732question. He took the note and mortgage by assignment after the due date.
We therefore hold that the summary final judgment must be reversed and the cause remanded for the entry of a proper order pursuant to Rule 1.510(d), R.C.P., 31 F.S.A. Cf. Carvajal v. Apfelbaum, Fla.App.1964, 167 So.2d 756.
Reversed and remanded with directions.
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Cited By
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Sundie v. Haren, 253 So. 2d 857 (Fla. 1971)…ischarged and the petition for certiorari is dismissed. It is so ordered. CARLTON, ADKINS, and McCAIN, JJ., concur. ROBERTS, C. J., and DREW (Retired), J., concur in judgment. ERVIN, J., dissents. . 73 So. 2d 905 (Fla.1954). . Haren v. Sundie, 219 So. 2d 731 (Fla.App. 3rd 1969). . 233 So. 2d 417, 418 (Fla.App.3rd 1970). . 73 So. 2d 905, 906 (Fla.1954). . 130 Fla. 136, 177 So. 313 (1938). . 184 So. 2d 916 (Fla.App.3rd 1966). . Fla. East Coast Railway Co. v. State, 77 Fla. 571, 82 So. 136 (1919). .…
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Haren v. Sundie, 233 So. 2d 417 (Fla. 3d DCA 1970)…PER CURIAM. The appellants were the defendants in a mortgage foreclosure action. The trial court entered a summary final judgment [*418] for the appellee which was reversed on appeal. See Haren v. Sundie, Fla.App. 1969, 219 So. 2d 731. Prior to the filing of that appeal the mortgaged property was sold pursuant to the summary final judgment of foreclosure. Thereafter the trial court tried the issue made by the defendants’ answer and entered a second judgment for the plaintiff appe…
Authorities Cited
- Carvajal v. Apfelbaum, 167 So. 2d 756 (Fla. 3d DCA 1964)