Colon v. JP Morgan Chase Bank, NA
162 So. 3d 195
Fla. Dist. Ct. App.2015Background
- JP Morgan Chase Bank filed a verified amended complaint to foreclose Cristobal Colon’s mortgage, alleging all conditions precedent had been performed.
- Colon answered, generally denying and asserting an affirmative defense that the Bank failed to comply with notice requirements of paragraphs 15 and 22 of the mortgage (including lack of any demand/breach/acceleration letter).
- Paragraph 22 of the mortgage requires the lender to give borrower notice specifying default, cure actions, a 30‑day cure period, and warning of acceleration/foreclosure before accelerating.
- At summary judgment the Bank submitted an affidavit of indebtedness showing default and amounts due but did not attach or timely file an authenticated acceleration/notice letter or an affidavit authenticating such a letter.
- The trial court entered summary final judgment for the Bank; on appeal the court reviewed whether the Bank met its burden to refute Colon’s affirmative defense and whether the verified complaint sufficed as summary judgment evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lender satisfied mortgage paragraph 22 notice requirement before accelerating | Verified amended complaint alleged all conditions precedent were met; that suffices | Colon argued Bank produced no authenticated acceleration/notice letter to refute his denial | Held for Colon: Bank failed to produce competent summary judgment evidence authenticating notice, so genuine issue exists |
| Whether Colon’s affirmative defense was pleaded sufficiently | Bank: defense legally insufficient because mortgage does not require proof of borrower’s receipt | Colon: pleaded specific failure to comply with paragraphs 15 and 22 and denial of receipt | Held for Colon: affirmative defense pleaded with sufficient particularity under Rule 1.120(c) |
| Whether unauthenticated documents may support summary judgment | Bank: relied on documents/letters allegedly in record | Colon: unauthenticated documents cannot support summary judgment | Held for Colon: unauthenticated letters are inadmissible for summary judgment purposes |
| Whether a verified complaint can substitute for an affidavit to meet movant’s burden | Bank: verified complaint alleging conditions precedent is equivalent to affidavit | Colon: verification on information and belief is insufficient without personal‑knowledge affidavit under Rule 1.510(e) | Held for Colon: verified complaint here did not satisfy Rule 1.510(e); movant must produce competent affidavits to refute affirmative defense |
Key Cases Cited
- Samaroo v. Wells Fargo Bank, N.A., 137 So.3d 1127 (Fla. 5th DCA) (paragraph 22 creates condition precedent)
- DiSalvo v. SunTrust Mortg., Inc., 115 So.3d 438 (Fla. 2d DCA) (denial of receipt and allegation of noncompliance with §22 is legally sufficient)
- Lindgren v. Deutsche Bank Nat’l Trust Co., 115 So.3d 1076 (Fla. 4th DCA) (verified complaint cannot substitute for personal‑knowledge affidavit under Rule 1.510)
- Green v. JPMorgan Chase Bank, N.A., 109 So.3d 1285 (Fla. 5th DCA) (unauthenticated documents cannot support summary judgment)
- Holl v. Talcott, 191 So.2d 40 (Fla. 1966) (moving party bears burden to show nonexistence of genuine issue of material fact)
- Pavolini v. Williams, 915 So.2d 251 (Fla. 5th DCA) (movant must factually refute affirmative defenses or show they are legally insufficient)