Friday, August 7, 2009

Summary Judgment Reversed Because Bank Failed to Refute Defense That No Notice And Opportunity To Cure Was Provided

In Frost v. Regions Bank (4D08-3168), the Fourth District reversed the entry of summary judgment in a foreclosure action because the bank did not refute the plaintiff/appellant's affirmative defense that the bank failed to provide notice and an opportunity to cure.

the plaintiff, Regions Bank, did not negate the Frosts’ affirmative defense that the bank did not provide notice of the alleged default and a reasonable opportunity to cure.


Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id. (citing Fla. R. Civ. P. 1.510(c)). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Allenby, 8 So. 3d at 1213 (citation omitted). “Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.” Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786, 788 (Fla. 4th DCA 1995) (citation omitted).

Here, the bank did not factually refute the Frosts’ lack of notice and opportunity to cure defense. Nothing in the bank’s complaint, motion for summary judgment, or affidavits indicate that the bank gave the Frosts the notice which the mortgage required. The bank also did not establish that the Frosts’ lack of notice and opportunity to cure defense was legally insufficient. Although the bank argues that the defense did not refer to any language from the mortgage, the bank cites no authority which requires the defense to contain such a reference.


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