Mojica v. Bank of America, N.A. , 2016 Fla. App. LEXIS 5023 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MARIA MOJICA AND SAMUEL MOJICA,
Appellants,
v. Case No. 5D14-603
BANK OF AMERICA, N.A., ETC., ET AL.,
Appellees.
________________________________/
Opinion filed April 1, 2016
Appeal from the Circuit Court
for Osceola County,
Jeffords D. Miller, Judge.
Monique M. Sadarangani and Jon
Lindeman, Jr., of Advocate Law Groups of
Florida, P.A., Miami Lakes, for Appellants.
Mary J. Walter, of Liebler Gonzalez &
Portuondo, Miami, and Melissa A. Giasi, of
Kass Shuler, P.A., Tampa, for Appellee
Bank of America, N.A.
No Appearance for Other Appellees.
PER CURIAM.
Maria Mojica and Samuel Mojica (“Appellants”) timely appeal the trial court’s
summary final judgment of mortgage foreclosure in favor of Bank of America, N.A.
(“Bank”). They argue that Bank failed to rebut their affirmative defense of lack of notice
of default and acceleration.1 “If the defendant pleads affirmative defenses, the plaintiff
moving for summary judgment must either factually refute the affirmative defenses by
affidavit or establish their legal insufficiency.” Bryson v. Branch Banking & Tr. Co., 75 So.
3d 783, 786 (Fla. 2d DCA 2011). Based on a de novo review of the record before us, we
find no evidence to indicate that Bank refuted Appellants’ affirmative defense. An alleged
failure to comply with mortgage notice requirements creates a disputed issue of material
fact and precludes summary judgment of foreclosure. Cobbum v. Citimortgage, Inc., 158
So. 3d 755, 757-58 (Fla. 2d DCA 2015). Accordingly, we reverse the final judgment of
foreclosure and remand this case.
REVERSED and REMANDED.
LAWSON, C.J., SAWAYA and ORFINGER, JJ., concur.
1
Paragraph twenty-two of the mortgage reads, in pertinent part:
22. Acceleration; Remedies. Lender shall give notice to
Borrower prior to acceleration following Borrower’s breach of
any covenant or agreement in this Security Instrument (but
not prior to acceleration under Section 18 unless Applicable
Law provides otherwise). The notice shall specify: (a) the
default; (b) the action required to cure the default; (c) a date,
not less than 30 days from the date the notice is given to
Borrower, by which the default must be cured; and (d) that
failure to cure the default on or before the date specified in the
notice may result in acceleration of the sums secured by this
Security Instrument, foreclosure by judicial proceeding and
sale of the Property.
2