Pita v. State Street Bank & Trust Co.

666 So. 2d 268, 1996 Fla. App. LEXIS 219, 1996 WL 14450

• Court: District Court of Appeal of Florida
• Decided: January 17, 1996
• Docket: 95-1494
• Status: Published

Opinion

666 So.2d 268 (1996)

Arturo PITA and Aida Pita, Appellants,
v.
STATE STREET BANK AND TRUST COMPANY, As Trustee, Appellee.

No. 95-1494.

District Court of Appeal of Florida, Third District.

January 17, 1996.

Elena C. Tauler & Associates, Miami, and Robert L. Shearin, Boca Raton, for appellants.

Shapiro & Fishman, Boca Raton, and Susan Minor, Coral Gables, for appellee.

Before COPE, GODERICH and GREEN, JJ.

PER CURIAM.

This is an appeal from a final summary judgment of foreclosure where appellants raised payment as an affirmative defense. In support of its motion for summary judgment, the appellee bank submitted an affidavit of indebtedness. In response, appellants filed a counter affidavit asserting that they had made all payments due and that the bank had failed to properly credit their account. It is clear from these countervailing affidavits that a genuine issue of material fact exists as to whether payment was made by appellants. On a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses. E.g., Budweiser-Busch Distrib. Co. v. Keystone Lines, a Div. of Transcon Lines, 607 So.2d 503, 505 (Fla. 1st DCA 1992); Rice v. Mercy Hosp. Corp., 275 So.2d 566 (Fla. 3d DCA 1973). Thus, we hold that the entry of final summary judgment was error where a genuine issue of material fact remains unresolved. E.g., Moore v. Morris, 475 So.2d 666 (Fla. 1985); Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Perry & Co. v. Union Am. Ins. Co., 664 So.2d 1036 (Fla. 3d DCA 1995). Accordingly, we reverse and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.