Maynard v. Amerifirst Federal Savings & Loan Ass'n

479 So. 2d 869, 11 Fla. L. Weekly 12, 1985 Fla. App. LEXIS 16954

• Court: District Court of Appeal of Florida
• Decided: December 19, 1985
• Docket: No. 85-248
• Status: Published

Opinion

DAUKSCH, Judge.

This is an appeal from a final summary judgment in a mortgage foreclosure case. The judgment was entered after the court ordered appellant’s affirmative defenses stricken. The basis for the order striking the defenses says an affidavit “filed with the answer of such defendant was insufficient to support the Affirmative Defense of Tender alleged by such Defendant.” The judge required the defendant to file another affidavit which was also deemed insufficient.

Affirmative defenses do not have to be supported by affidavit so the court erred in striking the defense which was otherwise sufficiently alleged.

The summary judgment was improperly entered because there was a genuine issue of fact alleged and established by affidavit. The defendant alleged he tendered all delinquent payments to the plaintiff before the foreclosure action was filed and that the plaintiff refused the payments. His allegations were supported by affidavit from his secretary which confirms this fact and thus raises an adequate defense and bars summary judgment. Campbell v. Werner, 232 So.2d 252, 256 (Fla. 3d DCA 1970). The appellee apparently disputes the fact that a timely tender was made so this dispute requires a trial to reach the resolution.

The summary judgment is reversed and this case remanded for trial on the merits.

ORFINGER and COWART, JJ„ concur.