Diana Jelic v. CitiMortgage, Inc. , 150 So. 3d 1223 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
DIANA JELIC,
Appellant,
v.
CITIMORTGAGE, INC., as Successor by Merger with FIRST
NATIONWIDE MORTGAGE CORPORATION,
Appellee.
No. 4D13-2933
[November 19, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Roger B. Colton, Judge; L.T. Case No.
502009CA007486XXXXMB.
Peter Ticktin, Josh Bleil, Kendrick Almaguer, and Michael Vater of The
Ticktin Law Group, P.A., Deerfield Beach, for appellant.
Nancy M. Wallace, Michael J. Larson, and Ryan D. O’Connor of
Akerman LLP, Tallahassee, and William P. Heller of Akerman LLP, Fort
Lauderdale, for appellee.
FORST, J.
In this foreclosure action, Appellant Diana Jelic appeals the trial court’s
entry of final summary judgment in favor of the appellee, CitiMortgage,
Inc. Appellant argues the trial court reversibly erred by (1) entering
summary judgment despite CitiMortgage’s failure to refute her affirmative
defenses of unclean hands and failure to satisfy the conditions precedent,
and (2) admitting the affidavit in support of the motion for summary
judgment. For the reasons stated below, we disagree and affirm the
summary judgment of foreclosure.
Standard of Review
We review an order granting summary judgment de novo. Volusia Cnty.
v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2002).
“Summary judgment cannot be granted unless the pleadings, depositions,
answers to interrogatories, and admissions on file together with affidavits,
if any, conclusively show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.”
Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So. 3d 1211, 1213 (Fla.
4th DCA 2009) (quoting Fini v. Glascoe, 936 So. 2d 52, 54 (Fla. 4th DCA
2006)). When evaluating summary judgment evidence, the court must
“draw every reasonable inference in favor of the non-moving party.” Knight
Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786, 788 (Fla. 4th DCA
1995).
CitiMortgage Sufficiently Rebutted Appellant’s Affirmative Defenses
“Before a plaintiff is entitled to a summary judgment of foreclosure, the
plaintiff must either factually refute the alleged affirmative defenses or
establish that they are legally insufficient to defeat summary judgment.”
Id. In the instant case, Appellant alleged a wide array of violations on the
part of CitiMortgage, the prior holders of the note, and the entire mortgage
lending industry.1 Generic claims that fail to allege any particularized
conduct on the part of the foreclosing bank are insufficient to assert a
claim of unclean hands. See Tribeca Lending Corp. v. Real Estate Depot,
Inc., 42 So. 3d 258, 263 (Fla. 4th DCA 2010) (holding no valid unclean
hands defense existed where plaintiff’s conduct was not the cause of
alleged harm to defendant). Defendants in a foreclosure action cannot
escape a judgment simply by attempting to overwhelm the court with the
number of violations alleged. Throwing the proverbial “everything but the
kitchen sink” at a plaintiff’s motion for summary judgment does not, alone,
create a sufficient issue of material fact to prevent summary judgment.
The alleged defenses must still be factually and legally sufficient. In the
instant case, they were not; in fact, Appellant stated in her deposition that
CitiMortgage did not do “anything wrong with regard to [her] loan.”
Similarly, Appellant claims CitiMortgage failed to provide her with
notice of acceleration, as required by the note. Appellant bases this
argument on the fact that she does not recall receiving such notice.
However, Appellant conceded that she had no reason not to believe the
notice was sent and CitiMortgage submitted an affidavit stating that notice
was sent, along with an attached copy of the letter and records showing
the letter was mailed. See Camerota v. Kaufman, 666 So. 2d 1042, 1045
(Fla. 4th DCA 1996) (noting the rebuttable presumption that mailed letters
will be received by the recipient).
1 For example, Appellant accused the mortgage lending industry of acting “with
the purpose of deriving great profits.”
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Because none of Appellant’s defenses were legally sufficient (and, in
several instances, were contradicted by Appellant’s deposition testimony),
her claim that CitiMortgage failed to refute her affirmative defenses is
rejected. The trial court properly found that the undisputed evidence
shows CitiMortgage complied with all conditions precedent to foreclosure.
Affidavit Submitted by CitMortgage
Was Properly Considered by the Trial Court
As a secondary issue (though interwined with the affirmative defenses
argument), Appellant contends that the affidavit submitted by
CitiMortgage in support of its motion for summary judgment failed to meet
the requirements of Florida Rule of Civil Procedure 1.510(e). This rule
requires that “sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith.”
Id. In the instant case, CitiMortgage submitted an affidavit swearing to
the authenticity of the business records used to determine the amounts
owed. The affiant attached a copy of the payment history going back to
November 2005. Although Appellant alleges the affiant referred to other
documents to determine the amounts owed, this is the only document the
affiant referred to in her deposition. Therefore, CitiMortgage has met the
requirements of Rule 1.510(e) that “copies of all papers or parts thereof
referred to in an affidavit” be attached.
Additionally, while CitiMortgage included the allegedly deficient
affidavit in its motion for summary judgment, nothing in the record
provided shows that Appellant objected to the affidavit during the
summary judgment proceedings. “[F]ailure to timely object to the
sufficiency of [CitiMortgage’s] affidavit when it was presented on motion
for summary judgment is fatal to this claim.” Vilvar v. Deutsche Bank Trust
Co. Ams., 83 So. 3d 853, 856 (Fla. 4th DCA 2011).
Conclusion
In November 2008, Appellant ceased making her monthly mortgage
payments on the subject property. This resulted in a foreclosure
complaint filed by CitiMortgage, the then-holder of a promissory note for
the property. As CitiMortgage was able to refute Appellant’s affirmative
defenses as factually and/or legally insufficient, and established an
absence of disputed issues of material fact (as distinct from disputed but
not supported theories), the trial court properly granted summary
judgment with respect to CitiMortgage’s foreclosure complaint.
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Affirmed.
DAMOORGIAN, C.J., and CIKLIN, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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