162 So. 3d 86
Fla. Dist. Ct. App.2014Background
- OneWest filed a verified foreclosure complaint in June 2012 asserting all conditions precedent to acceleration and foreclosure had occurred or were performed, waived, or excused.
- OneWest later moved for summary judgment, attaching an affidavit of indebtedness and a copy of a default letter, whose status as an exhibit was unclear.
- Freiday answered with affirmative defenses, including lack of compliance with conditions precedent to foreclose.
- The trial court granted summary judgment in OneWest's favor after a hearing, relying in part on the attached but unauthenticated default letter.
- The opinion notes that the default letters were not properly authenticated and that the motion and affidavit did not address compliance with conditions precedent.
- This Court reversed and remanded, holding there remained a genuine issue of material fact whether OneWest complied with Paragraphs 15 and 22 of the mortgage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OneWest complied with conditions precedent to foreclosure | Freiday contends noncompliance defeats foreclosure. | OneWest asserts compliance was proven by the movant and governing documents. | Remanded for factual determination on compliance with conditions precedent. |
| Admissibility and effect of the default letter in summary judgment | Default letter is unauthenticated and insufficient to prove notice/conditions. | Letter should be considered as part of the evidence supporting default. | Default letter deemed incompetent evidence; cannot support summary judgment. |
| Adequacy of evidence addressing conditions precedent in motion and affidavit | Affidavit and documents fail to address compliance with conditions precedent. | Evidence attached suffices to establish compliance. | Court cannot rely on record to show no material fact; remand required. |
Key Cases Cited
- Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009) (summary judgment requires refuting defenses or showing legal insufficiency)
- Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So. 3d 1093 (Fla. 4th DCA 2012) (unsworn default letters cannot support summary judgment; need addressing of conditions precedent)
- Bryson v. Branch Banking & Trust Co., 75 So. 3d 783 (Fla. 2d DCA 2011) (unauthenticated default letters not self-authenticating)
- Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696 (Fla. 4th DCA 2012) (court should not rely on evidence not addressing notice of acceleration)
- Zervas v. Wells Fargo Bank, N.A., 93 So. 3d 453 (Fla. 2d DCA 2012) (addressed notice of acceleration in motion for summary judgment)