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BOOM, BOOM, BOOM- 2nd DCA Keeps Keeps Pounding Out The RULE OF LAW

You gotta give it to Florida’s Second District Court of Appeals, they keep repeating over and over….

Summary Judgment means there are no issues of material facts…and here’s the kicker….WE EVEN MEAN THAT IN FORECLOSURE CASES!


(actually it’s not “like” they’re saying that…THE 2ND DCA IS SCREAMING IT…OVER AND OVER AND OVER)

Florida’s Second District Court of Appeals really does shine out brightly as a powerful beacon of justice and advocate for the RULE OF LAW.

This week’s example case is called, Bryson v. BBT….. But from now on, let’s refer to it as:


Because BB&T did notmeet its burden of conclusively showing that there was no genuine issue of material factand that it was entitled to judgment as a matter of law, we reverse the summaryjudgment and remand for further proceedings.

The party movingfor summary judgment bears the burden of establishing irrefutably that the nonmovingparty cannot prevail. See Hervey v. Alfonso, 650 So. 2d 644, 645-46 (Fla. 2d DCA995). “[I]t is only after the moving party has met this heavy burden that the nonmovingparty is called upon to show the existence of genuine issues of material fact.” Id. at
646; see also Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966) (“Until it is determined thatthe movant has successfully met this burden, the opposing party is under no obligationto show that issues do remain to be tried.”); Deutsch v. Global Fin. Servs., LLC, 976 So.2d 680, 682 (Fla. 2d DCA 2008) (“The burden of proving the existence of genuineissues of material fact does not shift to the opposing party until the moving party hasmet its burden of proof.”); Berenson v. S. Baptist Hosp. of Fla., Inc., 646 So. 2d 809,810 (Fla. 1st DCA 1994) (noting that “the nonmoving party need make no showing in
support of his claim until the moving party has, by affidavit or otherwise, completelynegated all allegations and inferences raised by the nonmoving party”).On summary judgment, the trial court’s function “is solely to determinewhether the record conclusively shows that the moving party proved a negative, that is,‘the nonexistence of a genuine issue of a material fact.’ ” Winston Park, Ltd. v. City ofCoconut Creek, 872 So. 2d 415, 418 (Fla. 4th DCA 2004) (quoting Besco USA Int’lCorp. v. Home Sav. of Am. FSB, 675 So. 2d 687, 688 (Fla. 5th DCA 1996)).

 Where a defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency. See Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009);Newton v. Overseas Private Inv. Corp., 544 So. 2d 224, 225 (Fla. 3d DCA 1989).

In numerous foreclosure cases summary judgment has been reversed
because the defendant has pleaded lack of notice and opportunity to cure as anaffirmative defense and nothing in the bank’s complaint, motion for summary judgment, or affidavits established that the bank gave the homeowners the notice and opportunityto cure required by the mortgage. See, e.g., Laurencio v. Deutsche Bank Nat’l TrustCo., 65 So. 3d 1190, 1192 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011) (“[N]othing in Busey’s complaint, motion for
summary judgment, or affidavits indicates that Busey gave Konsulian the notice whichthe mortgage required. . . . Further, Busey did not refute Konsulian’s defenses nor did itestablish that [they] were legally insufficient.”); Frost, 15 So. 3d at 906.We reach the
same conclusion in this case. The unauthenticated copies of default letters purportedly sent to Bryson byBB&T were insufficient for summary judgment purposes because only competentevidence may be considered in ruling on a motion for summary judgment. Daeda v.Blue Cross & Blue Shield of Fla., Inc., 698 So. 2d 617, 618 (Fla. 2d DCA 1997); Tunnellv. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991) (explaining that court could not
consider certain documents in its summary judgment decision because “Tunnell failedto attach either document to affidavits that presumably would have ensured theiradmissibility”).

At the summary judgment hearing, BB&T took the position that the letters
were self-authenticating because they were the bank’s own letters. Self-authenticationis a concept that, due to a document’s very nature of being notarized or certified insome fashion, eliminates hearsay and other extrinsic objections to admissibility.However, a document bereft of genuineness, such as a purported copy, cannot be saidto be self-authenticating because extrinsic evidence to establish its truthfulness is still required.

With this in mind, BB&T’s letters are clearly not self-authenticated. Hence, wereject BB&T’s argument in this regard. See, e.g., Bifulco v. State Farm Mut. Auto. Ins.Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997) (“Merely attaching documents which arenot ‘sworn to or certified’ to a motion for summary judgment does not, without more,satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).”); Morrison v. U.S.
Bank, N.A., 66 So. 3d 387, 387 (Fla. 5th DCA 2011) (reversing summary judgment offoreclosure where defendant asserted she had not received a notice of default asrequired by the mortgage and the bank had simply filed an unauthenticated noticeletter). In this case, the letters at issue were not admitted by the pleadings, nor werethey accompanied by an affidavit of a record custodian or other proper person attestingto their authenticity or correctness. See id.

Finally, BB&T argues that it was entitled to summary judgment because
“Bryson did not file any affidavits in opposition or tender sufficient evidence todemonstrate to the court that a genuine issue of material fact existed.” BB&T hasmisunderstood the summary judgment standard. If the defendant pleads affirmativedefenses, the plaintiff moving for summary judgment must either factually refute theaffirmative defenses by affidavit or establish their legal insufficiency. Frost, 15 So. 3d at906; Newton, 544 So. 2d at 225. “The burden of proving the existence of genuineissues of material fact does not shift to the opposing party until the moving party has
met its burden of proof.” Deutsch, 976 So. 2d at 682. Because BB&T did not tenderany competent evidence on the issue of Bryson’s notice of the default, it did not meet itsburden of proof on summary judgment.
Reversed and remanded.

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