DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2012
GAFOOR JAFFER and NINA JAFFER,
Appellants,
v.
CHASE HOME FINANCE LLC, as successor by merger to CHASE MANHATTAN MORTGAGE CORPORATION,
Appellee.
No. 4D11-1572
[June 6, 2012]
POLEN, J.
Appellants, Gafoor Jaffer and Nina Jaffer, appeal the trial court’s
order denying their amended motion to vacate default, set aside
summary judgment, and cancel sale in an underlying foreclosure action.
In support of its case, Chase Home Finance, LLC (“Chase”) filed affidavits
signed by representatives of the company. Later, Chase filed a letter with
the trial court, admitting that some of its affidavits may have been signed
by individuals without personal knowledge of the facts therein. As such,
we remand this case to th e trial court, limited strictly to the
determination of whether the affidavits filed in this case were based on
the personal knowledge of the affiant.
Chase filed a mortgage foreclosure complaint a n d an amended
mortgage foreclosure complaint against the Jaffers. The amended
complaint states that Chase is the holder of the note and mortgage and
is entitled to enforce the same against the property owner, the Jaffers.
The Jaffers defaulted and Chase declared the entire amount on the note
due. In anticipation of a hearing on its motion for summary judgment in
the course of this foreclosure case, Chase filed an affidavit as to amounts
due and owing. The affiant was Mary Cook, employee of Chase.1 Cook
averred as to Chase’s practice regarding its books, records, and
documents and stated that she had personal knowledge of the sums of
money owed by the Jaffers. After the summary judgment hearing, the
court entered final summary judgment of mortgage foreclosure in favor of
Chase, making the unpaid principal balance, interest, late charges,
miscellaneous fees and expenses, and taxes due. Public sale was set for
September 1, 2010, at 10:00 a.m.
Chase filed a motion to cancel foreclosure sale, attaching a letter
stating that “[i]t has come to the attention of Chase . . . that in some
cases employees in Chase’s mortgage foreclosure operations may have
signed affidavits about loan documents on the basis of file reviews done
by other personnel – without the signer personally having reviewed those
loan files.” The court granted Chase’s motion to cancel the sale. The
Jaffers filed a motion to vacate default, set aside summary judgment and
cancel sale, pursuant to Florida Rule of Civil Procedure 1.540(3)-(5). The
trial court entered an order denying the Jaffers’ motion. This appeal
timely followed.
The Jaffers argue that the affidavit in support of Chase’s motion for
summary judgment was never confirmed as valid after Chase placed the
authenticity of its affidavits at issue in its motion to cancel foreclosure
sale. Therefore, the Jaffers contend that the trial court erred in its
failure to set aside default and summary judgment when Chase placed
its own underlying evidence into question.
“Summary judgment is appropriate where there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a
matter of law.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d
170, 172 (Fla. 4th DCA 2012). Here, Chase filed a motion to cancel
foreclosure sale, stating that it filed a n affidavit of indebtedness in
support of its motion for summary judgment and that it accurately
reflected the Jaffers’ debt. However, Chase also submitted a letter,
providing that it was internally investigating the validity of its affidavits,
as personnel without proper personal knowledge h a d signed such
documents.
“Under rule 1.510(e), Florida Rules of Civil Procedure, affidavits must
b e based o n personal knowledge, set forth facts which would be
admissible in evidence, and show ‘the affiant is competent to testify to
the matters stated therein.’” Coleman v. Grandma’s Place, Inc., 63 So. 3d
929, 932 (Fla. 4th DCA 2011).
Chase’s motion for summary judgment states that the Jaffers are in
default and that all of their outstanding expenses are detailed in an
affidavit as to attorney’s fees and costs. The affidavit as to amounts due
and owing was later filed in support of the motion for final summary
judgment. The Jaffers filed an affidavit in which they admitted late
payments, return of payments, and forbearance, but they never actually
admitted default and a complete inability to continue making mortgage
payments. Therefore, the only affidavit on the record which actually
explains the Jaffers’ indebtedness is an affidavit by Chase, which may or
may not be in compliance with Florida Rule of Civil Procedure 1.510(e),
based on the letter filed with the court by Chase.
Due to the possibility that Chase’s affidavits were signed by improper
personnel, we remand this case and direct the trial court to limit its
considerations to whether the affidavits filed in this case were based on
the personal knowledge of the affiants.
Reversed and Remanded.
HAZOURI and LEVINE, JJ., concur.
* * *
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. 10-449 CACE.
Joann M. Hennessey of Civil Justice Advocates, PL, Fort Lauderdale,
for appellants.
Rossana Navarro and Dennis M. Campbell of Campbell Law Firm
PLLC, Coral Gables, for appellee.
Not final until disposition of timely filed motion for rehearing.
footnote:
1 In two separately filed affidavits, Mary Cook was referred to in two different
positions. In one, she was the assistant secretary, and in the other, she was
referred to as vice president.
