Bryson v. Branch Banking and Trust Co.
2011 Fla. App. LEXIS 18976
| Fla. Dist. Ct. App. | 2011Background
- BB&T filed a foreclosure complaint on July 16, 2008 alleging Bryson had not paid since February 1, 2008.
- Bryson admitted execution of the mortgage and missing at least one payment, but asserted lack of notice to cure under paragraph 22.
- Paragraph 22 required notice prior to acceleration, detailing default, cure period, cure deadline, and rights to reinstate and defenses.
- BB&T claimed two April 28, 2008 default letters were sent to Bryson, but the letters were unauthenticated and not attached to an affidavit.
- The trial court granted summary judgment based on the letters; the court held the letters were self-authenticating.
- This court reversed, holding that the unauthenticated letters could not support summary judgment and that BB&T failed to prove notice to cure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did BB&T provide proper notice to cure under paragraph 22? | Bryson: no valid notice to cure; no proof of notice. | BB&T: notices were sent and sufficient to trigger acceleration. | Notice not proven; reversed for trial. |
| Are unauthenticated default letters admissible for summary judgment? | Bryson: letters unauthenticated cannot be used. | BB&T: letters are self-authenticating as bank records. | Unauthenticated letters cannot support summary judgment. |
| Can self-authentication doctrine salvage unauthenticated documents? | Bryson: letters not properly authenticated. | BB&T: letters self-authenticating because bank-generated. | Letters not self-authenticating; rejected. |
| Did BB&T meet the burden of proving no genuine issue of material fact despite affirmative defenses? | Bryson: summary judgment should be denied due to defenses. | BB&T: bore burden to prove no issues after negating defenses. | BB&T failed to tender competent evidence; reversed and remanded. |
Key Cases Cited
- Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272 (Fla. 2d DCA 2006) (burden on movant to show no genuine issue of material fact)
- Hervy v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995) (burden-shifting in summary judgment)
- Holl v. Talcott, 191 So.2d 40 (Fla.1966) (moving party bears initial burden; nonmoving party need not respond until burden met)
- Deutsch v. Global Fin. Servs., LLC, 976 So.2d 680 (Fla. 2d DCA 2008) (burden-shifting; nonmoving party evidence required if movant meets burden)
- Berenson v. S. Baptist Hosp. of Fla., Inc., 646 So.2d 809 (Fla. 1st DCA 1994) (nonmoving party need not prove anything until movant negates defenses)
- Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009) (affirmative defenses require refutation or legal insufficiency)
- Newton v. Overseas Private Inv. Corp., 544 So.2d 224 (Fla. 3d DCA 1989) (burden-shifting in summary judgment analysis)
- Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So.3d 1190 (Fla. 2d DCA 2011) (notice-and-cure affirmative defenses in foreclosure)
- Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011) (bank failed to show proper notice; defenses persist)
- Morrison v. U.S. Bank, N.A., 66 So.3d 387 (Fla. 5th DCA 2011) (unauthenticated notice letters insufficient)
- Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707 (Fla. 4th DCA 1997) (documents not sworn or certified cannot satisfy 1.510(e))