Third District Court of Appeal
State of Florida
Opinion filed May 24, 2017.
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No. 3D16-1664
Lower Tribunal No. 15-18917
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Marlene Montenegro-Toirac,
Appellant,
vs.
REO Asset Acquisitions, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jerald Bagley,
Judge.
Loan Lawyers, LLC, and Chase E. Jenkins (Fort Lauderdale), for appellant.
Shapiro, Fishman & Gache, LLP, and Kimberly Hopkins (Tampa), for
appellee.
Before ROTHENBERG, LOGUE, and LUCK, JJ.
CONFESSION OF ERROR
ROTHENBERG, J.
Based on REO Asset Acquisitions, LLC’s (“REO”) proper and
commendable confession of error, we reverse the final summary judgment entered
against the defendant, Marlene Montenegro-Toirac (“the defendant”). As REO
properly concedes, it failed to establish that no genuine issue of material fact
remained concerning its compliance with the condition precedent relating to the
notice of default where the notice of default was not attached to its affidavit in
response to the defendant’s affirmative defenses. See Toyos v. Helm Bank, USA,
187 So. 3d 1287, 1290 (Fla. 4th DCA 2016) (reversing entry of final summary
judgment and remanding for further proceedings where notice of default was not
attached to an affidavit or otherwise sworn to). Accordingly, we reverse the entry
of final summary judgment in favor of REO and remand for further proceedings.
Reversed and remanded.
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