Haren v. Sundie

219 So. 2d 731, 1969 Fla. App. LEXIS 6205

Opinion

PER CURIAM.

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 question. 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.