Judy v. MSMC Venture, LLC
100 So. 3d 1287
Fla. Dist. Ct. App.2012Background
- Judys appeal final judgment of mortgage foreclosure in MSMC Venture, LLC’s favor.
- Two promissory notes and mortgages were executed in May 2006 to MSMC’s predecessor for $227,500 and $84,000.
- MSMC sent default notices in August 2007 for both loans; foreclosure action followed.
- Judys answered, asserting lack of proper notice of default as an affirmative defense; MSMC denied defenses and moved for summary judgment.
- Trial court granted summary judgment; appellate court reversed, finding insufficient proof MSMC refuted the affirmative defense on notice.
- Court held the default notices did not specify the breach as required by the mortgage terms and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice of default complied with mortgage terms | Judy | Judy | Not satisfied; notice failed to specify the breach. |
| Whether summary judgment was proper without refuting affirmative defenses | Judy | MSMC | Reversed; genuine issue as to notice remained. |
| Standard of review for summary judgment in foreclosure disputes | Judy | MSMC | De novo review; requires conclusive evidence of no material fact. |
| Impact of non-conforming notice on acceleration and foreclosure | Judy | MSMC | Notice defect invalidates acceleration under the mortgage terms. |
| Whether the record supports refuting the defense or shows legal sufficiency | Judy | MSMC | MSMC failed to conclusively refute the defense. |
Key Cases Cited
- Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011) (bank must refute defenses or show legal insufficiency)
- Morroni v. Household Fin. Corp. III, 903 So.2d 311 (Fla. 2d DCA 2005) (burden on movant to prove no genuine issues of material fact)
- Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So.3d 251 (Fla. 2d DCA 2011) (burden-shifting in summary judgment motions)
- Deutsch v. Global Fin. Servs., LLC, 976 So.2d 680 (Fla. 2d DCA 2008) (explanation of summary judgment standards and defenses)
- Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) (summary judgment requires conclusive absence of material facts)