Mojica v. Bank of America, N.A.

District Court of Appeal of Florida

Mojica v. Bank of America, N.A.

188 So. 3d 109, 2016 WL 1261131, 2016 Fla. App. LEXIS 5023

CourtDistrict Court of Appeal of Florida

DecidedApril 1, 2016

Docket5D14-603

StatusPublished

This text of 188 So. 3d 109 (Mojica v. Bank of America, N.A.) 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.

Bluebook

Mojica v. Bank of America, N.A., 188 So. 3d 109, 2016 WL 1261131, 2016 Fla. App. LEXIS 5023 (Fla. Ct. App. 2016).

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Opinion

PER CURIAM.

Maria Mojica and Samuel Mojica (“Appellants”) timely appeal the trial court’s summary final judgment of mortgage foreclosure in favor of Bank of America, N.A. (“Bank”). They argue that Bank failed to rebut their affirmative defense of lack of notice of default and acceleration. 1 “If *110 the defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency.” Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011). Based on a de novo review of the record before us, we find no evidence to indicate that Bank refuted Appellants’ affirmative defense. An alleged failure to comply with mortgage notice requirements creates a disputed issue of material fact and precludes summary judgment of foreclosure. Cobbum v. Citimortgage, Inc., 158 So.3d 755, 757-58 (Fla. 2d DCA 2015). Accordingly, we reverse the final judgment of foreclosure and remand, this case.

REVERSED and REMANDED.

LAWSON, C.J., SAWAYA and ORFINGER, JJ., concur.

1

. Paragraph twenty-two of the mortgage reads, in pertinent part:

*110 22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c). a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration ■ of -the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

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PER CURIAM.

Maria Mojica and Samuel Mojica (“Appellants”) timely appeal the trial court’s summary final judgment of mortgage foreclosure in favor of Bank of America, N.A. (“Bank”). They argue that Bank failed to rebut their affirmative defense of lack of notice of default and acceleration. 1 “If *110 the defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency.” Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011). Based on a de novo review of the record before us, we find no evidence to indicate that Bank refuted Appellants’ affirmative defense. An alleged failure to comply with mortgage notice requirements creates a disputed issue of material fact and precludes summary judgment of foreclosure. Cobbum v. Citimortgage, Inc., 158 So.3d 755, 757-58 (Fla. 2d DCA 2015). Accordingly, we reverse the final judgment of foreclosure and remand, this case.

REVERSED and REMANDED.

LAWSON, C.J., SAWAYA and ORFINGER, JJ., concur.

1

. Paragraph twenty-two of the mortgage reads, in pertinent part:

*110 22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c). a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration ■ of -the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

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Bluebook (online)

188 So. 3d 109, 2016 WL 1261131, 2016 Fla. App. LEXIS 5023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mojica-v-bank-of-america-na-fladistctapp-2016.

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