Gorel v. Bank of New York Mellon

District Court of Appeal of Florida

Gorel v. Bank of New York Mellon

151 So. 3d 1288, 2014 Fla. App. LEXIS 20575, 2014 WL 7191052

CourtDistrict Court of Appeal of Florida

DecidedDecember 19, 2014

DocketNo. 5D13-165

StatusPublished

This text of 151 So. 3d 1288 (Gorel v. Bank of New York Mellon) 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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Gorel v. Bank of New York Mellon, 151 So. 3d 1288, 2014 Fla. App. LEXIS 20575, 2014 WL 7191052 (Fla. Ct. App. 2014).

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Opinion

PER CURIAM.

Adiel Gorel and FLCA Tropical Holdings, LLC appeal the Final Summary Judgment of Mortgage Foreclosure in favor of The Bank of New York Mellon (Bank). Gorel and FLCA contend that Bank failed to establish that it was entitled to summary judgment because it failed to properly refute their affirmative defense alleging Bank’s failure to provide them with pre-acceleration notice as required by the terms of the mortgage. We agree, reverse the summary judgment under, review, and remand this case for further proceedings. See Pavolini v. Williams, 915 So.2d 251, 253 (Fla. 5th DCA 2005) (“ ‘[T]he plaintiff must either disprove those defenses by evidence or establish their legal insufficiency. Thus, summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.’ ” (citation omitted) (quoting The Race, Inc. v. Lake & River Recreational Props., Inc., 573 So.2d 409, 410 (Fla. 1st DCA 1991))); see also Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 733 (Fla.1991) (“A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.”); Gray v. Union Planters Nat'l Bank, 654 So.2d 1288, 1288 (Fla. 3d DCA 1995) (“[Wjhere a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgment.’ ” (quoting Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Ft. Lauderdale, 338 So.2d 905, 906 (Fla. 3d DCA 1976))).

REVERSED and REMANDED.

SAWAYA, PALMER, and LAMBERT, JJ., concur.

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PER CURIAM.

Adiel Gorel and FLCA Tropical Holdings, LLC appeal the Final Summary Judgment of Mortgage Foreclosure in favor of The Bank of New York Mellon (Bank). Gorel and FLCA contend that Bank failed to establish that it was entitled to summary judgment because it failed to properly refute their affirmative defense alleging Bank’s failure to provide them with pre-acceleration notice as required by the terms of the mortgage. We agree, reverse the summary judgment under, review, and remand this case for further proceedings. See Pavolini v. Williams, 915 So.2d 251, 253 (Fla. 5th DCA 2005) (“ ‘[T]he plaintiff must either disprove those defenses by evidence or establish their legal insufficiency. Thus, summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.’ ” (citation omitted) (quoting The Race, Inc. v. Lake & River Recreational Props., Inc., 573 So.2d 409, 410 (Fla. 1st DCA 1991))); see also Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 733 (Fla.1991) (“A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.”); Gray v. Union Planters Nat'l Bank, 654 So.2d 1288, 1288 (Fla. 3d DCA 1995) (“[Wjhere a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgment.’ ” (quoting Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Ft. Lauderdale, 338 So.2d 905, 906 (Fla. 3d DCA 1976))).

REVERSED and REMANDED.

SAWAYA, PALMER, and LAMBERT, JJ., concur.

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151 So. 3d 1288, 2014 Fla. App. LEXIS 20575, 2014 WL 7191052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gorel-v-bank-of-new-york-mellon-fladistctapp-2014.

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