Diana Jelic v. CitiMortgage, Inc.
150 So. 3d 1223
| Fla. Dist. Ct. App. | 2014Background
- Fourth District Court of Appeal affirms summary judgment in foreclosure for CitiMortgage, Inc. against Diana Jelic.
- Appellant ceased monthly payments in November 2008; CitiMortgage held the note and brought foreclosure.
- Appellant asserted unclean hands and failure to satisfy conditions precedent as defenses; also claimed lack of notice of acceleration.
- CitiMortgage submitted an affidavit with payment history; evidence supported notice was mailed.
- Appellant’s defenses were found legally or factually insufficient and inconsistent with deposition testimony.
- Trial court granted summary judgment; appellate court held there were no genuine issues of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did CitiMortgage rebut appellant's defenses? | Jelic asserts unclean hands and conditions precedent defeat. | CitiMortgage refuted defenses; defenses legally insufficient. | Yes; defenses insufficient; summary judgment proper. |
| Was the affidavit supporting summary judgment properly admitted under Rule 1.510(e)? | Affidavit lacked required attachments and foundation. | Affidavit attached payment history; records referred to; no objection raised. | Yes; affidavit properly admitted. |
Key Cases Cited
- Tribeca Lending Corp. v. Real Estate Depot, Inc., 42 So.3d 258 (Fla. 4th DCA 2010) (unclean hands defenses must be particularized and supported)
- Camerota v. Kaufman, 666 So.2d 1042 (Fla. 4th DCA 1996) (presumption that mailed letters are received)
- Vilvar v. Deutsche Bank Trust Co. Am., 83 So.3d 853 (Fla. 4th DCA 2011) (failure to timely object to affidavit is fatal)
- Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995) (summary judgment inference standard)
- Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2002) (summary judgment standard of review)
- Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211 (Fla. 4th DCA 2009) (standard for evaluating summary judgment evidence in appellate review)
- Fini v. Glascoe, 936 So.2d 52 (Fla. 4th DCA 2006) (quoted in standard of review for summary judgment)