ADIEL GOREL AND FLCA TROPICAL HOLDINGS, LLC, APPELLANTS,
v.
THE BANK OF NEW YORK MELLON, ETC., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court reversed summary judgment in a mortgage foreclosure action because the bank failed to refute the borrower's affirmative defense regarding lack of pre-acceleration notice as required by the mortgage terms.
A plaintiff seeking summary judgment in a foreclosure action must affirmatively disprove or establish the legal insufficiency of an affirmative defense; summary judgment is improper where the defendant asserts a legally sufficient affirmative defense that has not been rebutted.
[1] A plaintiff in a foreclosure action must affirmatively disprove or establish the legal insufficiency of an affirmative defense raised by the defendant; summary judgment i…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“'[T]he plaintiff must either disprove those defenses by evidence or establish their legal insufficiency. Thus, summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.'”
Pavolini v. Williams, establishing the standard for summary judgment when affirmative defenses are raised.
Adiel Gorel and FLCA Tropical Holdings, LLC were defendants in a mortgage foreclosure action brought by The Bank of New York Mellon. The defendants as…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Mortgage Foreclosure cases and more on FLexlaw
Adiel Gorel and FLCA Tropical Holdings, LLC appeal the Final Summary Judgment of Mortgage Foreclosure in favor of The Bank of New York Mellon (Bank). Gorel and FLCA contend that Bank failed to establish that it was entitled to summary judgment because it failed to properly refute their affirmative defense alleging Bank’s failure to provide them with pre-acceleration notice as required by the terms of the mortgage. We agree, reverse the summary judgment under, review, and remand this case for further proceedings. See Pavolini v. Williams, 915 So.2d 251, 253 (Fla. 5th DCA 2005) (“ ‘[T]he plaintiff must either disprove those defenses by evidence or establish their legal insufficiency. Thus, summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.’ ” (citation omitted) (quoting The Race, Inc. v. Lake & River Recreational Props., Inc., 573 So.2d 409, 410 (Fla. 1st DCA 1991))); see also Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 733 (Fla.1991) (“A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.”); Gray v. Union Planters Nat'l Bank, 654 So.2d 1288, 1288 (Fla. 3d DCA 1995) (“[Wjhere a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgment.’ ” (quoting Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Ft. Lauderdale, 338 So.2d 905, 906 (Fla. 3d DCA 1976))).
REVERSED and REMANDED.
SAWAYA, PALMER, and LAMBERT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Vamper, 579 So. 2d 730 (Fla. 1991)
- Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730 (Fla. 1991)
- Johnson & Kirby, Inc. v. Citizens Nat'l Bank OF Fort Lauderdale, 338 So. 2d 905 (Fla. 3d DCA 1976)
- THE Race, Inc. v. Lake & River Recreational Props., Inc., 573 So. 2d 409 (Fla. 1st DCA 1991)
- Melvin v. State, 915 So. 2d 251 (Fla. 5th DCA 2005)
- Pavolini v. Williams, 915 So. 2d 251 (Fla. 5th DCA 2005)
- Gray v. Union Planters Nat'l Bank, 654 So. 2d 1288 (Fla. 3d DCA 1995)