Another most excellent foreclosure opinion where a summary judgment of foreclosure was reversed!
Great news (again) for consumers!
Adiel Gorel and FLCA Tropical Holdings, LLC appeal the Final Summary Judgment
of Mortgage Foreclosure in favor of The Bank of New York Mellon (Bank). Gorel and
FLCA contend that Bank failed to establish that it was entitled to summary judgment
because it failed to properly refute their affirmative defense alleging Bank’s failure to
provide them with pre-acceleration notice as required by the terms of the mortgage. We
agree, reverse the summary judgment under review, and remand this case for further
proceedings. See Pavolini v. Williams, 915 So. 2d 251, 253 (Fla. 5th DCA 2005) (“‘[T]he
plaintiff must either disprove those defenses by evidence or establish their legal
insufficiency. Thus, summary judgment is appropriate only where each affirmative
defense has been conclusively refuted on the record.’” (citation omitted) (quoting The
Race, Inc. v. Lake & River Recreational Props., Inc., 573 So. 2d 409, 410 (Fla. 1st DCA
1991))); see also Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla. 1991)
(“A court cannot grant summary judgment where a defendant asserts legally sufficient
affirmative defenses that have not been rebutted.”); Gray v. Union Planters Nat’l Bank,
654 So. 2d 1288, 1288 (Fla. 3d DCA 1995) (“‛[W]here a defendant pleads an affirmative
defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff
is not entitled to a summary judgment.’” (quoting Johnson & Kirby, Inc. v. Citizens Nat’l
Bank of Ft. Lauderdale, 338 So. 2d 905, 906 (Fla. 3d DCA 1976))).
of Mortgage Foreclosure in favor of The Bank of New York Mellon (Bank). Gorel and
FLCA contend that Bank failed to establish that it was entitled to summary judgment
because it failed to properly refute their affirmative defense alleging Bank’s failure to
provide them with pre-acceleration notice as required by the terms of the mortgage. We
agree, reverse the summary judgment under review, and remand this case for further
proceedings. See Pavolini v. Williams, 915 So. 2d 251, 253 (Fla. 5th DCA 2005) (“‘[T]he
plaintiff must either disprove those defenses by evidence or establish their legal
insufficiency. Thus, summary judgment is appropriate only where each affirmative
defense has been conclusively refuted on the record.’” (citation omitted) (quoting The
Race, Inc. v. Lake & River Recreational Props., Inc., 573 So. 2d 409, 410 (Fla. 1st DCA
1991))); see also Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla. 1991)
(“A court cannot grant summary judgment where a defendant asserts legally sufficient
affirmative defenses that have not been rebutted.”); Gray v. Union Planters Nat’l Bank,
654 So. 2d 1288, 1288 (Fla. 3d DCA 1995) (“‛[W]here a defendant pleads an affirmative
defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff
is not entitled to a summary judgment.’” (quoting Johnson & Kirby, Inc. v. Citizens Nat’l
Bank of Ft. Lauderdale, 338 So. 2d 905, 906 (Fla. 3d DCA 1976))).