Toyos v. Helm Bank, USA
187 So. 3d 1287
| Fla. Dist. Ct. App. | 2016Background
- Bank filed verified complaint to foreclose mortgage, attaching note, mortgage, and assignment and alleging all conditions precedent were satisfied.
- Mortgage paragraph 22 required the lender to send a written default notice informing borrower of a 30‑day right to cure before acceleration.
- Borrower asserted affirmative defenses, including lender’s failure to send the paragraph 22 default notice, and stated she did not receive such notice.
- Bank moved for summary judgment, attaching a loan history and an affidavit from its Special Assets Manager averring the complaint’s allegations were true; the default notice itself was attached only to the bank’s reply, not the motion or affidavit.
- Trial court entered final summary judgment for the bank; borrower appealed arguing the bank failed to rebut her affirmative defense that it did not send the required default notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did bank prove compliance with mortgage paragraph 22 (sending default notice)? | Borrower: bank failed to send required written default notice and thus failed to rebut affirmative defense. | Bank: verified complaint alleged compliance; affidavit attested allegations true; default notice and envelope were attached to reply. | Reversed — bank did not prove notice was sent; summary judgment improper. |
| Was the default notice admissible as summary judgment evidence? | Borrower: notice not proven received or authenticated. | Bank: attachment to reply showed notice and mailing. | Not admissible — notice was unauthenticated and not attached to affidavit or served timely. |
| Could the verified complaint substitute for an affidavit to support summary judgment? | Borrower: complaint insufficient to prove personal‑knowledge facts. | Bank: verification in complaint and attesting affidavit suffice. | Complaint insufficient: must meet affidavit requirements and show personal knowledge. |
| Was the bank affiant’s testimony adequate to establish facts? | Borrower: affidavit did not establish personal, factual knowledge of mailing. | Bank: affiant swore to truth of complaint and personal knowledge. | Inadequate — affidavit’s conclusory statements were insufficient to authenticate mailing. |
Key Cases Cited
- Jaffer v. Chase Home Fin., LLC, 155 So.3d 1199 (Fla. 4th DCA 2015) (standard of de novo review on summary judgment in foreclosure contexts)
- Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288 (Fla. 4th DCA 2010) (summary judgment improper when affirmative defenses raise unresolved factual issues)
- Cufferi v. Royal Palm Dev. Co., 516 So.2d 983 (Fla. 4th DCA 1987) (same proposition on affirmative defenses and summary judgment)
- Bryson v. Branch Banking & Trust Co., 75 So.3d 783 (Fla. 2d DCA 2011) (documents attached but unsworn to a supporting affidavit are unauthenticated for summary judgment)
- Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707 (Fla. 4th DCA 1997) (unsworn/certified attachments to motions are insufficient under Fla. R. Civ. P. 1.510(e))
- Lindgren v. Deutsche Bank Nat’l Trust Co., 115 So.3d 1076 (Fla. 4th DCA 2013) (verified complaint may function as an affidavit only if it satisfies affidavit rule requirements)
- Nour v. All State Pipe Supply Co., 487 So.2d 1204 (Fla. 1st DCA 1986) (conclusory statements of personal knowledge in an affidavit are insufficient)