Chester A. Brooks and Arlene E. Brooks v. Bank of America, N.A., San Remo Homeowners Community Association, Inc.

District Court of Appeal of Florida

Chester A. Brooks and Arlene E. Brooks v. Bank of America, N.A., San Remo Homeowners Community Association, Inc.

192 So. 3d 619, 2016 Fla. App. LEXIS 7971, 2016 WL 3011653

CourtDistrict Court of Appeal of Florida

DecidedMay 25, 2016

Docket4D14-3337

StatusPublished

This text of 192 So. 3d 619 (Chester A. Brooks and Arlene E. Brooks v. Bank of America, N.A., San Remo Homeowners Community Association, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Chester A. Brooks and Arlene E. Brooks v. Bank of America, N.A., San Remo Homeowners Community Association, Inc., 192 So. 3d 619, 2016 Fla. App. LEXIS 7971, 2016 WL 3011653 (Fla. Ct. App. 2016).

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Opinion

STEVENSON, J.

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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STEVENSON, J.

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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192 So. 3d 619, 2016 Fla. App. LEXIS 7971, 2016 WL 3011653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chester-a-brooks-and-arlene-e-brooks-v-bank-of-america-na-san-remo-fladistctapp-2016.

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