Kanu v. Pointe Bank

861 So. 2d 498, 2003 Fla. App. LEXIS 18351, 2003 WL 22850028

Opinion

PER CURIAM.

We reverse the final summary judgment of mortgage foreclosure because the affidavits submitted by appellee did not conclusively refute one of the affirmative defenses raised by appellant. See Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995). ■ Appellant alleged that she made payments to appellee prior to the notice of default and made other payment plan agreements thereafter, and appellee failed to provide notice of its intent to accelerate the balance due on the mortgage. The affidavit of indebtedness filed by appellee did not include the date of the last payment, nor did it even state that the loan was in default.. All it contained was the amount due as of a date after the filing of the lawsuit. Therefore, there is a disputed issue of material fact as to whether the loan was in default when the bank elected to accelerate.

Appellee conclusively refuted the remaining affirmative defenses, as well as the issues raised in the counterclaim. Our reversal is therefore limited to the establishment of a default and entitlement to acceleration by the appellee.

WARNER, STEVENSON and GROSS, JJ., concur.