10-2376 Answer Brief

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STATE OF FLORIDADISTRICT COURT OF APPEAL

FIFTH DISTRICT

JOHN R. GODSHALK,

Appellant,

vs. CASE NO.: 5D10-2376L.T. CASE NO.: 2009-CA-22074-O

COUNTRYWIDE HOME LOANSSERVICING, L.P., ET AL.,

Appellees.

APPELLEES ANSWER BRIEF

Appeal from the Circuit Court of theNinth Judicial Circuit,

Orlando, Orange County, Florida

Thomasina F. Moore, EsquireFla. Bar No. 57990Dennis W. Moore, EsquireFla. Bar No. 273340BUTLER & HOSCH, P.A.

3185 South Conway Road, Suite EOrlando, Florida 32812Telephone: (407) 381-5200Fax: (407) 381-5577

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TABLE OF CONTENTS

TABLE OF CITATIONS ...................................................................................... iii

PRELIMINARY STATEMENT ............................................................................ 1

STATEMENT OF THE FACTS ............................................................................ 2

STANDARD OF REVIEW ..................................................................................... 4

SUMMARY OF THE ARGUMENT ..................................................................... 6

ARGUMENT AND AUTHORITIES .................................................................... 7

I. THERE IS NO GENUINE ISSUE OF MATERIAL FACTPRECLUDING SUMMARY JUDGEMENT BECAUSE THE

APPELLANTS ANSWER AND AFFIRMATIVE DEFENSES

TO THE COMPLAINT ARE LEGALLY INSUFFICIENT TO

RAISE A VIABLE DEFENSE AND THE APPELLEE REFUTEDTHE ALLEGATIONS IN THAT PLEADING ........................................... 7

A. The Appellants answer and affirmative defenses are legally

insufficient to raise a viable defense and do not create agenuine issue of material fact ................................................................. 8

1.The Appellants denial of the Appellees allegation that allconditions precedent to this action have been complied with islegally insufficient because it lacks the requisite specificity. ................ 9

2. The Appellants affirmative defense regarding acceleration ofthe debt is legally insufficient to create an issue of fact. ....................12

a. Affirmative Defense IV is not a true affirmative defense. ..........13

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b. Affirmative Defense IV is legally insufficient because itlacks the requisite specificity. .........................................................14

B. There is no genuine issue of material fact regarding eitherAppellees satisfaction of conditions precedent to this

foreclosure action or the acceleration of the debt because the

Appellee provided competent evidence supporting theseallegations............................................................................................... 16

1.The Appellee Refuted Defendants Allegation Regarding the

failure of conditions precedent through its affidavit in support ofsummary judgment. ...............................................................................17

2.The Appellee refuted Appellants allegation regardingacceleration of the debt because filing the complaint is proof thedebt was accelerated..............................................................................21

CONCLUSION.......................................................................................................22

CERTIFICATE OF SERVICE ............................................................................23

CERTIFICATE OF COMPLIANCE ..................................................................23

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TABLE OF CITATIONS

Cases

Babcock v. Whatmore, 707 So.2d 702(Fla.1998)..................................................13

Cady v. Chevy Chase Savings and Loan Inc., 528 So.2d 136(Fla. 4th DCA 1988) ................................................................................ 14, 15, 16

Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980) ........................................4, 15

Cooke v. Insurance Company of North America, 652 So.2d 1154(Fla. 2d DCA 1995) ............................................................................................... 9

Delno v. Market Street Railway Company, 124 F.2d 965 (9th Cir. 1942) ............... 5

DeMesme v. Stephenson, Jr., M.D., 498 So2d 673 (Fla. 1st DCA 1986) ........ 17, 19

Everett Painting Co. v. Padula & Wadsworth Construction,856 So.2d. 1059 (Fla. 4th DCA 2003) ................................................................... 4

Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009) ................. 11, 12, 19, 20

Haven Federal Savings & Loan Association v. Kirian,579 So.2d 730 (Fla.1991) ....................................................................................14

In re Rawson Food Service, Inc., 846 F.2d 1343 (11th Cir. 1988) ........................13

King 205, LLC v. Dick Pittman Roof Services, Inc., 31 So.3d 242(Fla. 5th DCA 2010) .............................................................................................. 4

La Rossa v. Glynn, 302 So.2d 467 (Fla. 3d DCA 1974) .......................................... 5

Langford v. McCormick, 552 So.2d 964 (Fla. 1st DCA 1989) ...............................13

Leal v. Deutsche Bank National Trust Co., 21 So.3d 907(Fla. 3d DCA 2009) .............................................................................................14

Liles v. Savage, 163 So. 399 (Fla.1935) .................................................................21

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Northside Bank of Miami v. La Melle, 380 So.2d 1322(Fla. 3d DCA 1980) .............................................................................................18

Scarfo v. Peever, 405 So.2d 1064 (Fla. 5th DCA 1981) .........................................21

Southern Waste v. J & A Transfer, 879 So.2d 86 (Fla. 4th DCA 2004) .................15

State ex rel. Eli Lilly & Co. v. Shields, 83 So.2d 271 (Fla.1955)...........................13

Storchwerke v. Thiessen's Wallpapering Supplies, Inc.,538 So.2d 1382 (Fla.5th DCA 1989) ...................................................................13

T. & C.Corp. v. Eikenberry, 178 So. 137 (Fla.1938) ............................................21

Rules

Fla. R. Civ. P. Rule 1.120(c) .......................................................................... passim

Fla. R. Civ. P. Rule 1.140 ...................................................................................8, 15

Fla. R. Civ. P. 1.510(c) .................................................................................... 17, 18

Fla. R. Civ. P. 1.510(e) ...........................................................................................17

Fla. R. Civ. P. 12(b) ................................................................................................13

Treatises

Fla. Jur 2d Mortgages, Etc. 272............................................................................. 9

Other Authorities

4 Fla. Prac., Civil Procedure R. 1.120 ...................................................................... 8

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PRELIMINARY STATEMENT

Appellant, JOHN R. GODSHALK, shall be referred hereafter as

Defendant, Appellant, or Mr. Godshalk.

Appellee, COUNTRYWIDE HOME LOANS SERVICING, L.P., shall be

referred to hereafter as Plaintiff or Appellee.

For the purposes of Appellees Answer Brief, I.B. refers to the Appellants

Initial Brief. Cites to the record on appeal shall appear as R.: followed by the page

number.

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STATEMENT OF THE FACTS

The Appellee is providing the following facts to supplement the facts

provided by the Appellant in his initial brief. This appeal is derived from an action

sounding in foreclosure. Appellant does not dispute that he is in default and he

failed to make the agreed upon payments under the promissory note and mortgage

in this case since 2008. (R.:174). In fact, under the terms of the promissory note

the first payment was due on February 1, 2008. (R.:65). The record reveals that no

payments were made by the Appellant after the first payment. (R.:86). In

addition, at the summary judgment hearing, counsel for the Appellee informed the

trial court that this was an investment property for the Appellant and that at the

time this action was filed there were two tenants served at the property. (R.:175).

This statement was not refuted by the Appellant at the hearing. Finally he does not

dispute that portion of the summary final judgment of foreclosure adjudicating the

total amount due under the note to be $285,970.02. (R.:121).

The appellant did not provide an affidavit in support of his opposition to

summary judgment. Indeed there was no record evidence provided by the

Appellant in opposition to the Appellees motion for summary judgment. At the

hearing, the Appellant argued the Appellee had not met the standard for summary

judgment because it had not satisfied the requisite conditions precedent to bringing

an action. (R.:171). The trial court considered whether the affirmative defense

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raised by the Appellant was a viable defense. (R.:173). At the conclusion of the

summary judgment hearing the trial court granted the Appellees motion for

summary judgment. (R.:176).

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STANDARD OF REVIEW

The instant case contains issues both as to fact and law, and as such,

warrants a mixed standard of review. When reviewing a trial courts order of

summary final judgment, the appropriate standard of review on appeal is de novo.

Everett Painting Co. v. Padula & Wadsworth Construction, 856 So.2d. 1059, 1061

(Fla. 4th DCA 2003). However, the lower court's ultimate factual determinations

may not be disturbed on appeal unless shown to be unsupported by competent and

substantial evidence or to constitute an abuse of discretion. King 205, LLC v. Dick

Pittman Roof Services, Inc., 31 So.3d 242 (Fla. 5th DCA 2010). In this appeal the

Appellant challenges the lower courts factual findings and whether the court had

substantial competent evidence to grant summary judgment in favor of the

Appellee.

The Florida Supreme Court set forth the test used in determining whether the

trial court abused its discretion in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.

1980), when it found that:

In reviewing a true discretionary act, the appellate court must fullyrecognize the superior vantage point of the trial judge and shouldapply the reasonableness test to determine whether the trial judge

abused his discretion. If reasonable men could differ as to thepropriety of the action taken by the trial court, then the action is notunreasonable and there can be no finding of an abuse of discretion.The discretionary ruling of the trial judge should be disturbed onlywhen his decision fails to satisfy this test of reasonableness. Id. at1203 (emphasis added).

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Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful,

or unreasonable, which is another way of saying that discretion is abused only

where no reasonable man would take the view adopted by the trial court.Delno v.

Market Street Railway Company, 124 F.2d 965, 967 (9th Cir. 1942).

It is well established that the trial judge, sitting as the trier of fact,has the responsibility of determining the weight, credibility andsufficiency of the evidence, and that these findings come to this courton appeal clothed with a presumption of correctness and will not bedisturbed unless it is shown that there is a total lack of substantialevidence to support those conclusions.' See La Rossa v. Glynn, 302

So.2d 467 (Fla. 3d DCA 1974).

As set forth above, when reviewing evidence presented to the trial court at

summary final judgment the standard of review on appeal is abuse of discretion.

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SUMMARY OF THE ARGUMENT

The final summary judgment entered by the trial court in this matter should

be affirmed because the Appellants denial regarding satisfaction of a condition

precedent to this action contained in his answer is legally insufficient as it was not

pled with the required specificity or particularity. Likewise, the Appellants

affirmative defense alleging the Appellee did not accelerate the debt in this matter

is also legally insufficient because it is not an affirmative defense, and even if it

were, it lacked the necessary specificity. In fact, neither the denial nor the defense

was pled with enough detail to allow the Appellee to frame an appropriate

response. Lastly, even if the denial and the defense are found to have the requisite

specificity, the summary judgment should be affirmed because the Appellee

refuted both the denial and the defense with sufficient record evidence.

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ARGUMENT AND AUTHORITIES

I. THERE IS NO GENUINE ISSUE OF MATERIAL FACT

PRECLUDING SUMMARY JUDGEMENT BECAUSE THE

APPELLANTS ANSWER AND AFFIRMATIVE DEFENSES

TO THE COMPLAINT ARE LEGALLY INSUFFICIENT TO

RAISE A VIABLE DEFENSE AND THE APPELLEE

REFUTED THE ALLEGATIONS IN THAT PLEADING

The Appellant asserts as his basis for appealing the trial courts order

granting summary judgment in this action that there are genuine issues of material

fact that are yet to be decided in this case, prohibiting summary judgment. (I.B.

p.6). Specifically, the Appellant argues that his answer and affirmative defenses to

the complaint raise two distinct issues that warrant reversal of the lower courts

order. First, Appellant argues that the Appellee failed to satisfy all conditions

precedent (I.B. p.12) by not presenting evidence indicating any of the notices

required by the mortgage were provided. (R.:38). Second, the Appellant advances

the argument contained in their affirmative defense IV, (R.:39) that the Appellee

failed in its complaint to provide a basis for accelerating the debt in this case and

further allege that the debt was not accelerated. (I.B. p.12). As demonstrated

below, neither of these allegations raised a viable issue. Further, the Appellee

refuted the allegations. Therefore, summary judgment was properly rendered.

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A. The Appellants answer and affirmative defenses are legally

insufficient to raise a viable defense and do not create a

genuine issue of material fact

In Florida, the requirements for pleading satisfaction of conditions precedent

are found in Rule 1.120(c)1, Florida Rules of Civil Procedure, and the requirements

for pleading affirmative defenses are contained in Rule 1.140, Florida Rules of

Civil Procedure. Although the requirements are similar, this answer brief will

address both legal sufficiency as well as sufficiency of the evidence regarding both

issues separately.

However, although addressed separately, when analyzing either the

condition precedent allegations or the affirmative defense at issue, it is equally true

that the defensive pleading merely states conclusory allegations. (R.:39). The

answer herein represents a classic example of a pleading that is so generalized it

can be routinely inserted in any answer to any foreclosure complaint and it does

not even provide the responding party with a sufficient basis to frame a coherent

response. The pleadings of a defendant in a foreclosure suit are governed by the

rules governing pleadings generally; thus, the defendant's answer should set out a

full and complete defense and not leave the necessary facts to be gathered by

1A condition precedent is considered an element of the plaintiffs case. Therefore,the failure to satisfy the condition is a denial addressed to the element of the caserather than a defense. See, 4 Fla. Prac., Civil Procedure R. 1.120, 120.5 (2010-2011 ed.)

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inference alone. 37 Fla. Jur 2d Mortgages, Etc. 272. The Appellants pleading

as a whole suffers from this fatal flaw.

1. The Appellantsdenial of the Appellees allegation that allconditions precedent to this action have been complied with

is legally insufficient because it lacks the requisite

specificity.

The Appellant posits the Appellee did not refute his denial that all conditions

precedent to this action were satisfied. As argued more fully below this argument

is simply incorrect as the Appellee did refute the denial with record evidence.

However, this court need not reach that question because the denial was not pled

specifically and with particularity sufficient to raise a viable issue.

Pursuant to Rule 1.120(c), if a plaintiff is required to comply with a

condition precedent prior to initiating an action the plaintiff is permitted to plead

compliance in general terms. However, if the respondent wishes to deny

compliance Rule 1.120(c) requires the denial be made specifically and with

particularity. If the responding party fails to meet this requirement the

performance of conditions precedent are a non-issue and the party pleading

performance is not required to present evidence supporting the general allegation.

Cooke v. Insurance Company of North America, 652 So.2d 1154, 1156 (Fla. 2d

DCA 1995). In this case, the Appellant has failed to comply with the specificity

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requirement and has failed to raise failure to comply with conditions precedent as a

genuine issue.

In the complaint the Appellee generally pled the compliance with all

conditions precedent to the right to foreclose regarding the subject property.

(R.:2). In response the Appellant entered the following denial in his answer:

8. Denied. Neither the Plaintiff nor any other person has providedany of the notices required by the document that the Plaintiff purportsto be the applicable mortgage in this matter.

This plea is neither specific nor particular. A review of the subject mortgage in

this case reveals there are no less than 13 instances where the lender must provide

notice to the borrower. Simply alleging that none of the notices in the mortgage

were provided could only be categorized as a general denial that does not comply

with Rule 1.120(c), and leaves the Plaintiff to divine which notice might now

require evidence or a response. While counsel for the Appellant revealed at the

summary judgment hearing that it was the notice of acceleration that was not

complied with, (R.:171) this argument cannot repair the fatal problem with respect

to how the denial was pled in the answer. This does not comport with the intent of

Rule 1.120(c) and if the Court were to hold this denial was specific and particular

it would have the practical effect of requiring the Appellee to present evidence of

every notice required under the mortgage in anticipation of the actual basis of the

denial when it is revealed at the hearing. Further, the precedent cited by the

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Appellant does not support his claim the denial meets the specificity requirements

of Rule 1.120(c).

In the Appellants initial brief he simply states that his denial of the

Conditions Precedent Allegation was specific and made with sufficient

particularity. (I.B. p.12). To support this proposition he cites Frost v. Regions

Bank, 15 So.3d 905 (Fla. 4th DCA 2009). However, an analysis ofFrost reveals

that it is factually distinguishable from the case at bar and even supports the

position taken by the Appellee regarding this issue. The Frostcourt reviewed an

appeal taken from a summary judgment in favor of the lender in a foreclosure case.

Id. at 906. The borrowers in Frostargued in their appeal that the lender failed to

address their affirmative defenses which included compliance with the condition

precedent of providing notice of default and a reasonable opportunity to cure.

Id. The lender in Frostargued the defense did not refer to any language in the

mortgage in that case. However, the Frostcourt held that this argument did not

establish the defense was legally insufficient because the lender did not present any

case law which required a specific reference to the mortgage be made the defense.

Id. As the Frostcourt also held, the lender did not present any evidence refuting

the borrowers lack of notice and opportunity to cure defense, and the case was

reversed and remanded. This case is factually distinguishable from Frostbecause

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the borrowers in Frostprovided enough specificity and particularity to make the

plaintiff and the court aware of what notice the defendants were referring to.

The Frost court found the notice of default and opportunity to cure was

contained in the acceleration provision of the mortgage attached to the lenders

complaint. Id. By at least including in the defense the language indicating the type

of notice they were referring to it appears the fourth district believed the

defendants satisfied the specificity and particularity requirements of Rule 1.120(c).

In this case there was no such language used by the Appellant. The Appellants

denial alleging none of the notices required in the mortgage were provided does

not provide the same level of specificity and particularity the borrowers provided

in Frost. In Frostthe lender and the court could read the defense and know what

notice provision the appellant was referring to in his pleading. In the case

currently under review, neither the court nor the Appellee could determine what

notice the defendant intended to use as a defense until argument was made at a

hearing. This is not specific or particular and, therefore, constitutes a non-issue

which cannot create a genuine issue of material fact preventing entry of summary

judgment. The trial courts order should be affirmed.

2. The Appellants affirmative defense regarding acceleration

of the debt is legally insufficient to create an issue of fact.

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a. Affirmative Defense IV is not a true affirmative

defense.

[A]n affirmative defense is a pleading that, in whole or in part, bars or

voids the cause of action asserted by an opponent in the preceding pleading....

Storchwerke v. Thiessen's Wallpapering Supplies, Inc., 538 So.2d 1382, 1383

(Fla.5th DCA 1989). By definition, an affirmative defense is established when a

defendant admits to the essential facts of the complaint, but sets forth other facts in

justification and/or avoidance which the defendant must affirmatively establish.

SeeLangford v. McCormick, 552 So.2d 964 (Fla. 1st DCA 1989). Accordingly, a

defense that simply points out defects or flaws in the complaint is not an

affirmative defense. See, In re Rawson Food Service, Inc., 846 F.2d 1343, 1349

(11th Cir. 1988).2

The affirmative defense at issue on appeal provides:

With regard to all of the counts of the Complaint, the Plaintiffsclaims are barred in whole or in part, because the facts alleged in theComplaint do not provide a basis for the proposition that themortgage in question and/or the promissory note in question havebeen accelerated. In addition, with regard to all of the counts of theComplaint, neither the mortgage in question nor the promissory notein question has been accelerated.

(R.:39)(emphasis added)

2The Florida Supreme Court `has noted that the Floridarule governing defenses

is patterned after rule 12(b) of the FederalRules ofCivil Procedure, and that [t]heimport of our rules is to a like effect.Babcock v. Whatmore, 707 So.2d 702, 704(Fla.1998) (citing, State ex rel. Eli Lilly & Co. v. Shields, 83 So.2d 271, 272(Fla.1955)).
https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989031865&pubNum=735&originationContext=document&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)#co_pp_sp_735_1383https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989031865&pubNum=735&originationContext=document&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)#co_pp_sp_735_1383https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989031865&pubNum=735&originationContext=document&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)#co_pp_sp_735_1383https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989031865&pubNum=735&originationContext=document&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)#co_pp_sp_735_1383https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989031865&pubNum=735&originationContext=document&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)#co_pp_sp_735_1383

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Thus, at least in part, the affirmative defense at issue does not attempt to bar the

cause of action and only points out flaws in the complaint. In that respect it is not

a true affirmative defense and does not raise a viable defense.

b. Affirmative Defense IV is legally insufficient becauseit lacks the requisite specificity.

The defense is not legally sufficient because it does not specify the factual

basis for the conclusion the debt was not accelerated. Further, there is no

indication the Appellant could produce any evidence to support this defense.

The Appellant posits that summary judgment cannot be granted when the

defendant asserts legally sufficient affirmative defenses that are not rebutted. (I.B.

at p.8, citing, Haven Federal Savings & Loan Association v. Kirian, 579 So.2d

730, 733 (Fla.1991). The Appellee does not dispute this point of law. However,

the Appellants affirmative defense alleging failure to accelerate the debt is legally

insufficient because it does not state how the Appellee failed to accelerate.

By merely stating the conclusion of law without alleging the factual basis for

the conclusion, the Appellants affirmative defense is legally insufficient. Because

the defense is merely a conclusory statement it must have some factual support to

be legally sufficient. In Leal v. Deutsche Bank National Trust Co., 21 So.3d 907,

909 (Fla. 3d DCA 2009), the third district reviewed the sufficiency of the

defendants affirmative defenses in a foreclosure action and held that some of the

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affirmative defenses and statements in the affidavit in opposition are conclusory.

Where there are no facts pled to support general allegations of affirmative

defenses, the defenses are legally insufficient. In Cady v. Chevy Chase Savings

and Loan Inc., 528 So.2d 136 (Fla. 4th DCA 1988), the fourth district also reviewed

the sufficiency of the defendants affirmative defenses in a foreclosure action. See

also, Rule 1.140(b), Fla.R.Civ.P.; Southern Waste v. J & A Transfer, 879 So.2d 86,

87 (Fla. 4th DCA 2004). The affirmative defenses reviewed in Cady included

defenses alleging the loan was illegal and made allegations of false representations.

Id. at 138. The Cady courts review culminated in the following holding:

The allegation that the loan was illegal is conclusory and, withoutallegations of ultimate fact showing the illegality, does not constitutea sufficient defense. Finally, allegations that certain representationsmade were false without designating which ones were false and whomade them simply does not constitute an acceptable pleading of adefense based upon false misrepresentation. Certainty is requiredwhen pleading defenses, and pleading conclusions of law unsupportedby allegations of ultimate fact is legally insufficient.

Id., (Internal citations omitted).

The affirmative defense under review in this case suffers from the same

insufficiency as those in Cady.

In the case currently before the Court, the Appellant has focused his

argument on whether he is required to present evidence supporting his defense.

However, the question of what evidence is required to address defenses by either

party is only relevant if the defense is legally sufficient. As the court held in Cady,

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a review of the Appellants failure to accelerate defense reveals that it is legally

insufficient. The defense merely draws a legal conclusion that the Plaintiff failed

to accelerate without any supporting facts illustrating what the Plaintiff did or did

not do that resulted in the alleged failure. In this way the defense of failure to

accelerate in this case is similar to the defenses reviewed in Cady. As such, the

defense in this case is legally insufficient and the order granting summary

judgment should be affirmed.

In order to respond to this defense the Plaintiff would be required to either

divine its actual basis or address every possible permutation regarding failure to

accelerate debt. If the Appellant believes the Appellee has failed to accelerate the

debt he is required to state the specific reasons why or have his defense found to be

legally insufficient. Because this defense lacks sufficient specificity, it is legally

insufficient and cannot serve to establish a genuine issue of material fact

preventing the entry of summary judgment. The trial courts order granting

summary judgment should be affirmed.

B. There is no genuine issue of material fact regarding

either Appellees satisfaction of conditions precedent

to this foreclosure action or the acceleration of the

debt because the Appellee provided competentevidence supporting these allegations.

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1. The Appellee refuted defendants allegation regarding

the failure of conditions precedent through its

affidavit in support of summary judgment.

The Appellants argument that there is no record evidence indicating the

Appellee ever refuted his denial of satisfaction of conditions precedent is flat

wrong. The Appellee agrees that it has the burden of providing record evidence to

refute the Appellants denial regarding satisfaction of conditions precedent to this

action if the Court finds the denial was made with the requisite specificity and

particularity. However, the Appellee has carried that burden and the Appellant has

filed no evidence revealing a genuine issue. Therefore, the order granting


When moving for summary judgment the movant has the initial burden of

tendering evidence sufficient to support the motion. DeMesme v. Stephenson, Jr.,

M.D., 498 So.2d 673, 674 (Fla. 1st DCA 1986). If the movant produces record

evidence to support the motion the opposing party must come forward with

counter-evidence or justifiable inferences from facts presented sufficient to reveal

a genuine issue. Id. Rule 1.510(c) and (e), Florida Rules of Civil Procedure,

makes it clear that trial courts can rely on the pleadings and affidavits filed by the

parties when rendering its decision regarding summary judgment. A review of the

record here reveals evidence to support the satisfaction of all conditions precedent

were within the trial courts file at the summary judgment hearing.

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The Appellant argues the only evidence that could indicate support for the

satisfaction of the conditions precedent to this foreclosure action was a default

letter that Appellees counsel presented to the trial court on the day of the summary

judgment hearing. (I.B. pp.12-13). TheAppellants analysis of the record is

incomplete in this regard. Although Appellant did object to the submission of the

letter at the hearing (R.:175) he has still never stated the grounds for the objection.

However, a review of the record suggests the document was apparently not timely

served on the Appellant consistent with the requirements of Rule 1.510(c), Florida

Rules of Civil Procedure, and that formed the basis of the objection. See, (R.: 175)

(I will object to the use of the letter which Plaintiff is trying to attempt to use as

evidence today as a response). However, the failure to timely file summary

judgment evidence is immaterial if the evidence is available by other means.

Northside Bank of Miami v. La Melle, 380 So.2d 1322, 1323 (Fla. 3d DCA 1980).

In this instance the Appellee has other evidence sufficient to support the

satisfaction of the conditions precedent.

Even the case law cited by the Appellant indicates that an affidavit alone is

sufficient to disprove a defense. (I.B. p.10, citing, Newton v. Overseas Private

Investment Corp., 544 So.2d 224, 225 (Fla. 3d DCA 1989). The Appellee filed the

affidavit of Donald Clark on April 30, 2009. (R.:86-8). Mr. Clark swears that

based upon his relationship with the Plaintiff or as its agent he has personal

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knowledge of the facts and matters contained within the affidavit, is competent to

testify regarding all matters stated within the affidavit. Id. at p. 86. The affidavit

is sworn to by Mr. Clark and notarized. Id. at p. 88. In paragraph 4. Mr. Clark

states that [e]ach and every allegation contained in the complaint to Foreclose

Mortgage are true. Id. at p. 86. Paragraph 5 of the complaint states that, Notice

of default and demand for payment was sent to the present owners of the property

and mortgagors, and they have still failed to pay as required. (R.: p. 2). Paragraph

6 of the complaint further states the debt is accelerated by the filing of the

complaint. Lastly, paragraph 8 of the complaint states that, Plaintiff has complied

with all conditions precedent to its right to foreclose. Id. The evidence supplied

by Mr. Clarks affidavit in support of the summary judgment motion is fatal to this

appeal. Based upon this evidence the Courts ruling is not clearly erroneous and

the summary judgment should be affirmed.

As the Appellee met its initial burden of providing evidence to support the

satisfaction of conditions precedent to the foreclosure, the Appellant was required

to present counter-evidence sufficient to reveal a genuine issue. DeMesme 498

So.2d at 675. The Appellant did not present so much as an affidavit stating he

never received any of the notices he claims were never sent and his reliance on

Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009), does not warrant an

opposite result. In Frost the trial court granted the banks summary judgment

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motion in a foreclosure action. Id. at 905. The borrowers did not provide any

evidence in support of their opposition to summary judgment. Id. The borrowers

appealed the judgment arguing the trial court committed reversible error because

the bank did not refute its affirmative defense alleging thebanks failure satisfy the

conditions precedent to filing the foreclosure action. In that case the borrowers

specifically stated they were not provided the proper notice of default and

opportunity to cure. Id.

The Frostcourt reversed the summary judgment because the bank did not

factually refute the Frosts lack of notice and opportunity to cure defense. Id. at

906. The fourth district further held that [n]othing in the banks complaint,

motion for summary judgment, or affidavits indicated that the bank gave the Frosts

the notice which the mortgage required. Id. This case is clearly distinguishable

from Frost. Here, Mr. Clarks affidavit and the complaint provided record

evidence the default letter was sent, the debt was accelerated and all conditions

precedent to the foreclosure action were satisfied. Unlike the facts in Frost the

Appellant in this case was required to present countervailing evidence

demonstrating the existence of a genuine issue regarding the notice provisions he

allegedly never received. As the Appellant presented no evidence in this case


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2. The Appellee refuted Appellants allegation regarding

acceleration of the debt because filing the complaint is

proof the debt was accelerated.

The Appellant next posits the Appellee never accelerated the debt and the

complaint does not provide a basis for the proposition it was accelerated. (R.:39).

Acceleration of the debt in foreclosure matters allows the lender to demand full

payment of the entire principal and interest owed when the borrower is deemed to

be in default. Liles v. Savage, 163 So. 399, 400 (Fla.1935). This Court has

previously held that acceleration of the debt by the lender is considered a

contractual right which should be effectuated unless to do so would be

unconscionable. Scarfo v. Peever, 405 So.2d 1064, 1065 (Fla. 5th DCA 1981). In

this case the filing of the complaint is proof the Appellee was exercising their right

to accelerate the debt and summary judgment should be affirmed.

It is well established in Florida that filing the complaint constitutes proof the

debt was accelerated. See, Liles at 400; T. & C.Corp. v. Eikenberry, 178 So. 137,

513 (Fla.1938). In this case the Appellee filed the complaint to foreclose the

mortgage in this case on September 4, 2008. (R.:1-22). Further, the complaint

actually states [t]he Plaintiff by filing this Complaint does accelerate the payment

of the debt. (R.:2). This fact was sworn to by Mr. Clark in his affidavit filed on

April 30, 2009. (R.:86). Mr. Clark has testified that all the allegations contained

in the complaint are true. Id. Although the complaint itself is sufficient under

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Florida law to establish the debt was accelerated, the Appellee does not rely on this

fact alone. The fact that acceleration has occurred is also sworn to by the

Appellee. If the Appellant believed that some specific fact prevented the debt

from being accelerated they should have pled that specific fact as argued in

paragraph A of this section. As there is sufficient evidence the debt in this case

was accelerated, the order granting summary judgment is not clearly erroneous and

should be affirmed.

CONCLUSION

For the reasons more particularly set forth above the trial courts order

granting summary final judgment in this matter should be affirmed.

Respectfully Submitted,

__________________________Thomasina F. Moore, Esquire

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CERTIFICATE OF SERVICE

I certify that a copy of this Answer Brief was served by U.S. Mail this ___

day of ________ 2011 as follows:

MICHAEL E. RODRIGUEZ, ESQ.P.O. Box 75074Tampa, FL 33675-0074

__________________________Thomasina F. Moore, EsquireFlorida Bar No. 57990

Fla. Bar No. 57990Dennis W. Moore, EsquireFla. Bar No. 0273340BUTLER & HOSCH, P.A.3185 South Conway Road, Suite EOrlando, Florida 32812Telephone: (407) 381-5200Fax: (407) 381-5577

CERTIFICATE OF COMPLIANCE

I certify that this computer generated brief is composed in 14-point Times

New Roman font and complies with the font requirements of Fla. R. App. P.

9.100(l) and 9.210(a)(2).

__________________________Thomasina F. Moore, EsquireFlorida Bar No. 57990

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10-2376 Answer Brief