Opinion
No. 87-2017.
August 17, 1988.
Appeal from the Circuit Court for Broward County; Frank Orlando, Judge.
Mark Perlman of Perlman Perlow, P.A., Hallandale, for appellant.
Jeffrey Allan Hirsch and Kenni F. Judd of Holland Knight, Fort Lauderdale, for appellee.
Appellee, Barnett Bank, filed a suit to foreclose its mortgage on property owned by Solic Properties, naming appellant, Schmidt Industries, a second mortgagee, as a defendant. Schmidt filed an answer containing affirmative defenses, a counterclaim, and other pleadings not pertinent here. The trial court entered a summary judgment in favor of appellee, holding that the record demonstrated no genuine issue of fact.
We disagree and reverse. The affirmative defenses raised by appellant, together with his deposition testimony, reflect an issue of fact regarding appellee's alleged agreement not to make further advances on the first mortgage in excess of $173,000 without the consent of appellant. Should appellant be successful at trial in proving these defenses, it would make a substantial difference in the amount of the priority of the first mortgage.
Accordingly, we reverse the final summary judgment appealed from and remand the cause for further proceedings.
DOWNEY, ANSTEAD and LETTS, JJ., concur.