Colon v. JP Morgan Chase | Fla. 5th DCA - Bank failed to satisfy the notice requirement of paragraph 22 of the mortgage

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Colon v. JP Morgan Chase | Fla. 5th DCA – Bank failed to satisfy the notice requirement of paragraph 22 of the mortgage

Colon v. JP Morgan Chase | Fla. 5th DCA – Bank failed to satisfy the notice requirement of paragraph 22 of the mortgage

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

CRISTOBAL COLON,
Appellant,

v.       Case No. 5D14-1191

JP MORGAN CHASE BANK, NA, ET AL.,
Appellees.
_______ _________________________/
Opinion filed February 6, 2015

Appeal from the Circuit Court
for Osceola County,

Jeffords D. Miller, Judge.
Robert Flavell, of Robert Flavell, P.A.,
Miami Lakes, for Appellant.
Charles P. Gufford, of McCalla Raymer,
LLC, Orlando, for Appellee.

LAMBERT, J.

Cristobal Colon (“Colon”) appeals the summary final judgment of mortgage
foreclosure entered in favor of JP Morgan Chase Bank, N.A. (“Bank”). He argues that the
court erred in entering the summary final judgment because no competent evidence was
presented to refute his affirmative defense that Bank failed to satisfy the notice
requirement of paragraph 22 of the mortgage. We agree and reverse.

In January 2013, Bank filed a verified amended complaint, seeking to foreclose a
mortgage executed by Colon. Paragraph seven of the amended complaint contained a
general allegation that “all of the conditions precedent to the filing of this action have been
performed or have occurred.” Colon filed an answer generally denying this allegation and
additionally asserting as his second affirmative defense that:

[Bank] is precluded from obtaining relief due to the fact that it
has failed to satisfy all conditions precedent. Specifically,
[Bank] has failed to comply with the notice requirements
contained in paragraphs 15 and 22 of the mortgage and the
notice requirements contained in the note prior to accelerating
the loan and instituting a foreclosure action against
defendants. Defendants specifically deny receiving any
demand, breach and/or acceleration letter from plaintiff, its
servicers, agents and/or employees.

Paragraph 22 of the mortgage creates a condition precedent that Bank must satisfy
prior to accelerating the loan and commencing the foreclosure action. Samaroo v. Wells
Fargo Bank, 137 So. 3d 1127 (Fla. 5th DCA 2014). Paragraph 22 of the mortgage
provides:

Acceleration; remedies. Lender shall give notice to
borrower prior to acceleration following borrower’s breach of
any covenant or agreement in this security instrument (but not
prior to acceleration under section 18 unless applicable law
provides otherwise). The notice shall specify: (a) the default;
(b) the action required to cure the default; (c) the date not less
than 30 days from the date the notice is given to borrower, by
which the default must be cured; (d) that failure to cure the
default on or before the date specified in the notice may result
in acceleration of the sums secured by this security
instrument, foreclosure by judicial proceeding and sale of the
property. The notice shall further inform borrower of the right
to reinstate after acceleration and the right to assert in the
foreclosure proceeding the non-existence of a default or any
other defense of borrower to acceleration and foreclosure. If
the default is not cured on or before the date specified in the
notice, lender at its option may require immediate payment in
full of all sums secured by this security instrument without
further demand and may foreclose this security instrument by
judicial proceeding. Lender shall be entitled to collect all
expenses incurred in pursuing the remedies provided in this
section 22, including, but not limited to, reasonable attorney’s
fees and costs of title evidence.

In July 2013, Bank filed a motion for summary judgment together with an affidavit
of indebtedness establishing that Colon defaulted on his mortgage obligations and the
amounts then due and owing under the note and mortgage. However, in its motion and
affidavit, Bank did not respond to Colon’s affirmative defense of the lack of the condition
precedent, and Bank did not attach to its affidavit a copy of an acceleration letter.
Addressing this affirmative defense at the summary judgment hearing, Bank argued: (1)
the verified amended complaint signed under oath by its designated representative
specifically alleged that it complied with all conditions precedent; (2) the affirmative
defense was insufficiently pleaded; and (3) Colon had not filed an affidavit in opposition
to the motion for summary judgment. Colon countered that as there was no summary
judgment evidence “authenticating the breach letter,” he was not obligated to file an
affidavit in opposition. Colon is correct.

The standard of review of a trial court’s entry of a summary final judgment is de
novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000);
Gee v. U.S. Bank Nat’l Ass’n, 72 So. 3d 211, 213 (Fla. 5th DCA 2011). When reviewing
a ruling on summary judgment, an appellate court must examine the record in the light
most favorable to the nonmoving party. Suarez v. City of Tampa, 987 So. 2d 681, 682
(Fla. 2d DCA 2008). Summary judgment cannot be granted unless the pleadings,
depositions, answers to interrogatories, and admissions on file together with affidavits, if
any, conclusively show that there is “no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The
party moving for summary judgment has the burden of showing the nonexistence of a
genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). If affirmative
defenses have been raised, the moving party must also either factually refute the
affirmative defenses or establish that they are legally insufficient. See Pavolini v.
Williams, 915 So. 2d 251, 253 (Fla. 5th DCA 2005) (quoting The Race, Inc. v. Lake &
River Recreational Props., Inc., 573 So. 2d 409 (Fla. 1st DCA 1991)).
Initially, we reject Bank’s argument that Colon’s affirmative defense was
insufficiently pleaded. Florida Rule of Civil Procedure 1.120(c) requires that a denial of
conditions precedent “shall be made specifically and with particularity.” The purpose of
the rule is “to put the burden on the defendant to identify the specific condition that the
plaintiff failed to perform—so that the plaintiff may be prepared to produce proof or cure
the omission, if it can be cured.” Godshalk v. Countrywide Home Loans Servicing, L.P.,
81 So. 3d 626, 626 (Fla. 5th DCA 2012). Bank argues that the affirmative defense was
legally insufficient because Colon “specifically denied receiving any demand, breach
and/or acceleration letter” and the mortgage did not require it to prove that Colon received
the breach or acceleration letter. However, Colon also specifically pleaded, in his second
affirmative defense, that Bank failed to comply with the notice requirements contained in
paragraphs 15 and 22 of the mortgage. We agree with the Second District Court of
Appeal that this affirmative defense was pleaded sufficiently. See, e.g., DiSalvo v.
SunTrust Mortg., Inc., 115 So. 3d 438, 439–41 (Fla. 2d DCA 2013) (stating that the
defendant’s denial “that they had received the required notice and alleg[ation] that
SunTrust had not complied with any of the conditions precedent expressed in Section 22
of the mortgage . . . was legally sufficient to dispute SunTrust’s allegations that all
conditions precedent had been met”).

There was some dispute in the record whether the acceleration letter had been
provided to Colon either during discovery or at the summary judgment hearing. However,
it is undisputed that Bank never filed an authenticated copy of the letter pursuant to Florida
Rule of Civil Procedure 1.510(c), which requires the movant to serve at least 20 days
before the time fixed for the hearing all summary judgment evidence on which the movant
relies. “Unauthenticated documents cannot be used in support of a motion for summary
judgment.” Green v. JPMorgan Chase Bank, N.A., 109 So. 3d 1285, 1288 n.2 (Fla. 5th
DCA 2013); see also DiSalvo, 115 So. 3d at 440; Morrison v. U.S. Bank, N.A., 66 So. 3d
387, 387 (Fla. 5th DCA 2011) (holding that the bank’s filing of an unauthenticated notice
letter failed to support summary judgment where the defendant asserted she had not
received a notice of default); Bryson v. Branch Banking & Trust Co., 75 So. 3d 783, 786
(Fla. 2d DCA 2011) (“The unauthenticated copies of default letters purportedly sent to
Bryson by BB & T were insufficient for summary judgment purposes because only
competent evidence may be considered in ruling on a motion for summary judgment.”);
Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997)
(“Merely attaching documents which are not ‘sworn to or certified’ to a motion for summary
judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ.
Proc. 1.510(e).”).

Bank’s argument on appeal that the summary final judgment should be affirmed
because Colon did not raise a genuine issue of material fact since he failed to submit any
competent evidence in response to the summary judgment motion also misses the mark.

A party opposing a motion for summary judgment has no initial obligation to submit
affidavits or proof to establish its affirmative defenses. Stop & Shoppe Mart, Inc. v. Mehdi,
854 So. 2d 784, 786 (Fla. 5th DCA 2003). It is only when the party moving for summary
judgment has properly met its burden of proof demonstrating the nonexistence of a
genuine issue of material fact that the opposing party is then obligated to prove the
existence of an issue of material fact. Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164,
1167 (Fla. 1st DCA 2014) (stating that “if the moving party meets its burden of proof, it is
‘incumbent upon the party against whom the judgment is sought to demonstrate, by
affidavit or otherwise, the existence of an issue of material fact in order to avoid having a
summary judgment rendered against him’” (quoting Connell v. Sledge, 306 So. 2d 194,
196 (Fla. 1st DCA 1975))). Because Bank failed to meet its burden of proof to factually
refute the affirmative defense or establish that it was legally insufficient, Colon had no
obligation to submit competent evidence in opposition to Bank’s motion for summary
judgment.

Finally, Bank argues that its verified complaint was sufficient to prove it complied
with paragraph 22 of the mortgage. Florida Rule of Civil Procedure 1.110 provides:

When filing an action for foreclosure of mortgage on
residential real property, the complaint shall be verified. When
the verification of a document is required, the document filed
shall include an oath, affirmation, or the following statement:
“Under penalty of perjury, I declare that I have read the
foregoing, and the facts alleged therein are true and correct
to the best of my knowledge and belief.”

Fla. R. Civ. P. 1.110(b). Bank’s amended complaint was verified consistent with this rule,
and paragraph seven of Bank’s amended complaint stated generally that “all conditions
precedent to the filing of this action have been performed or have occurred.”

Nevertheless, we conclude that Bank’s verified complaint was insufficient to prove that it
complied with paragraph 22 of the mortgage because it did not satisfy the requirements
of Florida Rule of Civil Procedure 1.510(e). As stated in Lindgren v. Deutsche Bank
National Trust Co., 115 So. 3d 1076 (Fla. 4th DCA 2013):

While a verified complaint may serve the same purpose as an
affidavit for purposes of a summary judgment, the complaint’s
allegations must meet the requirements of the rule governing,
supporting and opposing affidavits. See Ballinger v. Bay Gulf
Credit Union, 51 So. 3d 528, 529 (Fla. 2d DCA 2010). Florida
R. Civ. P. 1.510(e) requires that affidavits must be based upon
personal knowledge and shall “show affirmatively that the
affiant is competent to testify to the matters stated therein.” A
complaint based on “information and belief” and not personal
knowledge, is insufficient. Id. Here, the complaint was not
based upon personal knowledge and was insufficient to meet
the requirements of the rule.
115 So. 3d at 1076. The verified amended complaint filed by Bank was similarly
insufficient for summary judgment purposes.

Assuming the acceleration letter in the instant case exists, in order to factually
refute Colon’s affirmative defense, Bank needed only to have a competent witness
execute a legally sufficient affidavit authenticating the letter, attach the letter to the
affidavit, and then timely file the affidavit. This burden of proof is not unusual or
demanding. For example, at trial, to establish its entitlement to foreclosure, Bank would
have been required to present a competent witness to authenticate the acceleration letter
prior to it being admitted into evidence.1 Here, Bank simply failed to provide competent
summary judgment evidence in order to meet its burden to prove the non-existence of the
disputed issue of material fact, namely, whether it had complied with paragraph 22 of the
mortgage. See Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696, 698 (Fla. 4th DCA
2012) (“Although Wells Fargo made the general allegation in its complaint that all
conditions precedent to the foreclosure action had occurred, there was no evidence in the
record that Wells Fargo complied with paragraph twenty-two of the mortgage.”).

Accordingly, we reverse the summary final judgment and remand this case for further
proceedings.

REVERSED and REMANDED.

ORFINGER and BERGER, JJ., concur.

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One Response to “Colon v. JP Morgan Chase | Fla. 5th DCA – Bank failed to satisfy the notice requirement of paragraph 22 of the mortgage”

  1. RAMIRO says:

    JUDGE GERLAD ESCALA OF BERGEN COUNTY FORECLOSURE COURT ARE YOU READING THIS AND LEARNING? FALKS IF YOU HAVE A CASE IN FRONT OF THIS JUDGE FILE FOR THE MAN RECUSAL IMMD HE IS KNOWN TO NEVER GIVE DUE PROCESS TO ANY HOME OWNER AND HE WILL GIVE YOUR HOME TO THE BANKSTERS WITHOUT ANY PROOF OF OWNERSHIP OF THE NOTE.THIS JUDGE IS SIMPLY BAD NEWS

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