final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 16-26200 William Thomas, Judge.
Pomeranz & Associates, P.A., and Mark L. Pomeranz
(Hallandale), for appellant.
Shuler, P.A., and Richard S. McIver and H. Michael
Muñiz (Tampa), for appellee.
SALTER, MILLER and GORDO, JJ.
Villasmil Raven appeals the trial court's order granting
final summary judgment of foreclosure in favor of Roosevelt
REO U.S. LLC. Because Roosevelt failed to conclusively refute
the affirmative defenses regarding compliance with a
condition precedent to filing for foreclosure and because
there remains a genuine issue of material fact regarding
Roosevelt's standing to enforce the note, Roosevelt was
not entitled to judgment as a matter of law. Thus, we reverse
and remand for further proceedings.
filed a two-count verified mortgage foreclosure complaint.
Count I sought to foreclose the mortgage on Raven's
property alleging that all conditions precedent to filing the
action had been performed. Count II was for enforcement of a
lost note which Roosevelt claimed it owned and had been
assigned the right to enforce before the instrument was lost.
Prior to Raven filing his answer and affirmative defenses,
Roosevelt filed a motion for summary judgment arguing its
pleadings and affidavits established there was no genuine
issue of material fact. The supporting affidavit stated
Roosevelt was the owner of the mortgage and note sought to be
foreclosed and that the loan was in default. In his answer
and affirmative defenses, Raven asserted that Roosevelt
failed to comply with the condition precedent of providing
timely notice prior to acceleration as required by paragraph
twenty-two of the mortgage and that Roosevelt lacked standing to
enforce the note. The trial court granted summary judgment
and entered a final judgment of foreclosure. This appeal
review a trial court's ruling on a motion for summary
judgment de novo. Volusia Cty. v. Aberdeen at Ormond
Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).
Summary judgment is proper only where the moving party shows
conclusively that there are no genuine issues of material
fact and that it is entitled to judgment as a matter of law.
When the nonmoving party has alleged affirmative defenses,
the moving party must conclusively refute the factual
bases for the defenses or establish that they are
legally insufficient. "The burden of proving the
existence of genuine issues of material fact does not shift
to the opposing party until the moving party has met its
burden of proof."
Johnson v. Deutsche Bank Nat'l Trust Co.
Americas, 248 So.3d 1205, 1207-08 (Fla. 2d DCA 2018)
(quoting Coral Wood Page, Inc. v. GRE Coral Wood,
LP, 71 So.3d 251, 253 (Fla. 2d DCA 2011)).
Roosevelt's motion for summary judgment, which was filed
before Raven even answered the complaint, does not indicate
that notice was given in compliance with paragraph
twenty-two. In fact, nothing in Roosevelt's complaint,
motion for summary judgment or supporting affidavit indicates
that it gave Raven the requisite notice. See Frost v.
Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009)
(holding the bank was not entitled to final summary judgment
of foreclosure where Frosts' affirmative defense that the
bank failed to provide notice of the alleged default and a
reasonable opportunity to cure was not factually refuted by
the bank's complaint, motion for summary judgment or
affidavits); Konsulian v. Busey Bank, N.A., 61 So.3d
1283, 1285 (Fla. 2d DCA 2011) (holding the bank failed to
prove that it met the conditions precedent to filing for
foreclosure and was not entitled to summary judgment where
nothing in the complaint, motion for summary judgment or
affidavits indicated the requisite notice was given). Thus,
Roosevelt's submissions do not establish in the first
instance that it met its burden of proof that no genuine
issue of material fact existed or that it complied with the
requisite conditions precedent to foreclose on the mortgage
Raven's submissions, including an affidavit opposing
summary judgment, aver specifically that Roosevelt failed to
provide requisite notice of default and acceleration of the
loan prior to foreclosure. "When a party raises
affirmative defenses, '[a] summary judgment should not be
granted where there are issues of fact raised by [the]
affirmative defense[s] which have not been effectively
factually challenged and refuted.'" Alejandre v.
Deutsche Bank Trust Co. Americas, 44 So.3d
1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal
Palm Dev. Co., 516 So.2d 983, 984 (Fla. 4th DCA 1987)).
the record does not clearly reflect Roosevelt's standing
to bring the foreclosure action. "If the record reflects
the existence of any genuine issue of material fact or the
possibility of any issue, or if the record raises even the
slightest doubt that an issue might exist, summary judgment
is improper." Johnson, 248 So.3d at 1208