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'nOpinion
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.