Opinion
No. 3D18-2009
08-14-2019
Hugo Villasmil RAVEN, Appellant, v. ROOSEVELT REO US LLC, Appellee.
Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for appellant. Kass Shuler, P.A., and Richard S. McIver and H. Michael Muñiz (Tampa), for appellee.
Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for appellant.
Kass Shuler, P.A., and Richard S. McIver and H. Michael Muñiz (Tampa), for appellee.
Before SALTER, MILLER and GORDO, JJ.
GORDO, J.
Hugo Villasmil Raven appeals the trial court's order granting final summary judgment of foreclosure in favor of Roosevelt REO US LLC. Because Roosevelt failed to conclusively refute the affirmative defenses regarding compliance with a condition precedent to filing for foreclosure and because there remains a genuine issue of material fact regarding Roosevelt's standing to enforce the note, Roosevelt was not entitled to judgment as a matter of law. Thus, we reverse and remand for further proceedings.
Roosevelt filed a two-count verified mortgage foreclosure complaint. Count I sought to foreclose the mortgage on Raven's property alleging that all conditions precedent to filing the action had been performed. Count II was for enforcement of a lost note which Roosevelt claimed it owned and had been assigned the right to enforce before the instrument was lost. Prior to Raven filing his answer and affirmative defenses, Roosevelt filed a motion for summary judgment arguing its pleadings and affidavits established there was no genuine issue of material fact. The supporting affidavit stated Roosevelt was the owner of the mortgage and note sought to be foreclosed and that the loan was in default. In his answer and affirmative defenses, Raven asserted that Roosevelt failed to comply with the condition precedent of providing timely notice prior to acceleration as required by paragraph twenty-two of the mortgage and that Roosevelt lacked standing to enforce the note. The trial court granted summary judgment and entered a final judgment of foreclosure. This appeal followed.
Paragraph twenty-two of the mortgage provides: "Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement .... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration ...."
We review a trial court's ruling on a motion for summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
Summary judgment is proper only where the moving party shows conclusively that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. When the nonmoving party has alleged affirmative defenses, the moving party must conclusively refute the factual bases for the defenses or establish that they are legally insufficient. "The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof."
Johnson v. Deutsche Bank Nat'l Trust Co. Americas, 248 So. 3d 1205, 1207-08 (Fla. 2d DCA 2018) (quoting Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251, 253 (Fla. 2d DCA 2011) ).
Here, Roosevelt's motion for summary judgment, which was filed before Raven even answered the complaint, does not indicate that notice was given in compliance with paragraph twenty-two. In fact, nothing in Roosevelt's complaint, motion for summary judgment or supporting affidavit indicates that it gave Raven the requisite notice. See Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009) (holding the bank was not entitled to final summary judgment of foreclosure where Frosts' affirmative defense that the bank failed to provide notice of the alleged default and a reasonable opportunity to cure was not factually refuted by the bank's complaint, motion for summary judgment or affidavits); Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011) (holding the bank failed to prove that it met the conditions precedent to filing for foreclosure and was not entitled to summary judgment where nothing in the complaint, motion for summary judgment or affidavits indicated the requisite notice was given). Thus, Roosevelt's submissions do not establish in the first instance that it met its burden of proof that no genuine issue of material fact existed or that it complied with the requisite conditions precedent to foreclose on the mortgage and note.
Conversely, Raven's submissions, including an affidavit opposing summary judgment, aver specifically that Roosevelt failed to provide requisite notice of default and acceleration of the loan prior to foreclosure. "When a party raises affirmative defenses, ‘[a] summary judgment should not be granted where there are issues of fact raised by [the] affirmative defense[s] which have not been effectively factually challenged and refuted.’ " Alejandre v. Deutsche Bank Trust Co. Americas, 44 So. 3d 1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co., 516 So. 2d 983, 984 (Fla. 4th DCA 1987) ).
Moreover, the record does not clearly reflect Roosevelt's standing to bring the foreclosure action. "If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Johnson, 248 So. 3d at 1208 (quoting Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So. 3d 884, 886 (Fla. 2d DCA 2015) ).
CONCLUSION
Because a genuine issue of material fact exists concerning Roosevelt's standing to foreclose and because Roosevelt did not conclusively refute Raven's affirmative defense concerning the satisfaction of a condition precedent, Roosevelt was not entitled to summary judgment as a matter of law. Accordingly, we reverse.
Reversed and remanded.