DiSalvo v. SunTrust Mortgage, Inc.
115 So. 3d 438
| Fla. Dist. Ct. App. | 2013Background
- SunTrust filed a foreclosure complaint in July 2009 against Joe and Elizabeth DiSalvo and later moved for final summary judgment and foreclosure.
- Complaint alleged all conditions precedent to acceleration were performed; DiSalvos specifically denied paragraph 9 (lack of required pre-acceleration notice and opportunity to cure under mortgage Section 22).
- SunTrust filed an unauthenticated copy of a default/notice letter and moved to strike certain affirmative defenses; the trial court granted the motion to strike the DiSalvos’ affirmative defenses in November 2010.
- At the May 2011 summary-judgment hearing, SunTrust relied on the filed notice copy and other loan papers; the trial court granted summary judgment and entered final foreclosure judgment.
- The appellate court examined whether SunTrust proved compliance with the mortgage’s notice-and-cure condition precedent and whether the DiSalvos’ denial preserved a factual dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved compliance with mortgage notice-and-cure condition precedent | SunTrust: filed copy of default notice and loan papers showing condition satisfied | DiSalvos: they never received the contractually required notice; denial of paragraph 9 was specific | The unauthenticated notice copy was inadmissible; SunTrust failed to prove compliance |
| Whether unauthenticated letters can support summary judgment | SunTrust: the filed copy meets its burden as evidence of notice | DiSalvos: unauthenticated document is not competent evidence under Rule 1.510(e) | Court: unauthenticated letters insufficient for summary judgment; competent proof (e.g., custodian affidavit) required |
| Whether striking affirmative defenses eliminated all factual disputes | SunTrust: struck defenses, so no defenses/affidavits remain; only bank affidavit needed | DiSalvos: denials in the answer (paragraph 9) remained and were sufficiently specific to create an issue | Court: striking defenses did not eliminate denials; specific denial preserved material factual dispute |
| Whether burden required DiSalvos to file affidavits opposing summary judgment | SunTrust: DiSalvos failed to submit affidavits, so no opposition evidence | DiSalvos: no obligation to file affidavit; plaintiff must conclusively prove condition precedent | Court: plaintiff bears burden to prove condition precedent; defendant need not file affidavits to defeat summary judgment |
Key Cases Cited
- F.A. Chastain Constr., Inc. v. Pratt, 146 So.2d 910 (Fla. 3d DCA 1962) (mortgagee must prove compliance with mortgage conditions before foreclosing)
- Bryson v. Branch Banking & Trust Co., 76 So.3d 783 (Fla. 2d DCA 2011) (unauthenticated default letters insufficient on summary judgment)
- Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So.3d 1093 (Fla. 4th DCA 2012) (unsworn letters cannot be considered on summary judgment)
- Morrison v. U.S. Bank, N.A., 66 So.3d 387 (Fla. 5th DCA 2011) (bank’s unverified notice letter failed to support summary judgment when receipt contested)
- Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707 (Fla. 4th DCA 1997) (documents not sworn or certified do not satisfy Rule 1.510(e))
- Cerron v. GMAC Mortg., LLC, 93 So.3d 456 (Fla. 2d DCA 2012) (plaintiff must prove it satisfied contractually required notice; defendant need not file affidavit to oppose)
- Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009) (specific denial of notice requirement in answer is sufficient to defeat legal sufficiency of summary judgment proof)
Reversed and remanded for further proceedings.