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Lazuran v. Citimortgage, Inc.

District Court of Appeal of Florida, Fourth District
Jun 9, 2010
35 So. 3d 189 (Fla. Dist. Ct. App. 2010)

Summary

reversing final summary judgment of foreclosure where the defendant raised the affirmative defense of unfulfilled contractual condition precedent

Summary of this case from Toler v. Bank of America, Nat'l Ass'n

Opinion

No. 4D09-1340.

June 9, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ronald J. Rothschild, Judge.

Mitchell Sens of Law Office of Mitchell Sens, P.A., Plantation, for appellant.

Jennifer E. Seipel of Butler Hosch, P.A., Orlando, for appellee Citimortgage Inc.

No appearance for other appellees.


We reverse the circuit court's final summary judgment of foreclosure against Stelian Lazuran (the "defendant"). Citimortgage's complaint alleged that all conditions precedent to the mortgage note's acceleration had been fulfilled, and Citimortgage's affidavit in support of its motion for summary judgment stated "[t]hat each and every allegation in the Complaint is true." Such a conclusory allegation is insufficient to refute the defendant's affirmative defense that Citimortgage failed to provide him with notice of the acceleration pursuant to the procedures specified in paragraph 22 of the mortgage. Therefore, reversal is required. See Frost v. Regions Bank, 15 So.3d 905, 906-07 (Fla. 4th DCA 2009) ("Because the bank did not meet its burden to refute the Frosts' lack of notice and opportunity to cure defense, the bank is not entitled to final final summary judgment of foreclosure.").

Reversed.

POLEN and LEVINE, JJ., concur.


Summaries of

Lazuran v. Citimortgage, Inc.

District Court of Appeal of Florida, Fourth District
Jun 9, 2010
35 So. 3d 189 (Fla. Dist. Ct. App. 2010)

reversing final summary judgment of foreclosure where the defendant raised the affirmative defense of unfulfilled contractual condition precedent

Summary of this case from Toler v. Bank of America, Nat'l Ass'n

reversing summary judgment where the plaintiff failed to refute the affirmative defense of lack of notice

Summary of this case from Taylor v. Bayview Loan Servicing
Case details for

Lazuran v. Citimortgage, Inc.

Case Details

Full title:Stelian LAZURAN, Appellant, v. CITIMORTGAGE, INC., David Stern, P.A.…

Court:District Court of Appeal of Florida, Fourth District

Date published: Jun 9, 2010

Citations

35 So. 3d 189 (Fla. Dist. Ct. App. 2010)

Citing Cases

Toler v. Bank of America, Nat'l Ass'n

Even assuming the defenses the Tolers mention are meritorious, they failed to make any allegations on…

Taylor v. Bayview Loan Servicing

There, the lender failed to establish that it met the condition precedent of providing the requisite notice…