Colon v. JP Morgan Chase Bank, NA, ___ So. 3d ___, 40 Fla. L. Weekly D361 (Fla. 5th DCA February 6, 2015)
The appellate court reversed summary final judgment of mortgage foreclosure because the lender failed to provide competent evidence to refute the borrower’s affirmative defense of lack of notice of default. (1) The affirmative defense was pled with sufficient particularity under Fla. R. Civ. P. 1.120(c). The borrower alleged that the lender failed to comply with the notice requirements of paragraphs 15 and 22 of the mortgage and specifically “den[ied] receiving any demand, breach and/or acceleration letter from [the lender or its agents].” (2) The lender did not show that the affirmative defense was legally insufficient. As a result, the lender was required to refute the defense factually, but it failed to file an authenticated copy of the notice letter at least twenty days before the hearing. “Unauthenticated documents cannot be used in support of a motion for summary judgment. (3) The borrower was not required to produce evidence in opposition to the motion for summary judgment because the lender failed to satisfy its burden of demonstrating the absence of genuine issues of material fact. (4) The lender’s complaint, alleging performance of all conditions precedent, was insufficient to support summary judgment because it was verified based upon information and belief, and personal knowledge is required under Fla. R. Civ. P. 1.510(e).
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