STATE OF FLORIDA DISTRICT COURT OF APPEAL FIFTH DISTRICT

JOHN R. GODSHALK, Appellant, vs. COUNTRYWIDE HOME LOANS SERVICING, L.P., ET AL., Appellees. CASE NO.: 5D10-2376 L.T. CASE NO.: 2009-CA-22074-O

APPELLEES ANSWER BRIEF

Appeal from the Circuit Court of the Ninth Judicial Circuit, Orlando, Orange County, Florida

Thomasina F. Moore, Esquire Fla. Bar No. 57990 Dennis W. Moore, Esquire Fla. Bar No. 273340 BUTLER & HOSCH, P.A. 3185 South Conway Road, Suite E Orlando, Florida 32812 Telephone: (407) 381-5200 Fax: (407) 381-5577

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 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 ........................................... 7 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 .................................................................8 1. The Appellants denial of the Appellees allegation that all conditions precedent to this action have been complied with is legally insufficient because it lacks the requisite specificity. ................9 2. The Appellants affirmative defense regarding acceleration of the debt is legally insufficient to create an issue of fact. ....................12 a. Affirmative Defense IV is not a true affirmative defense. ..........13

b. Affirmative Defense IV is legally insufficient because it lacks the requisite specificity. .........................................................14 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 competent evidence supporting these allegations. .............................................................................................. 16 1.The Appellee Refuted Defendants Allegation Regarding the failure of conditions precedent through its affidavit in support of summary judgment................................................................................17 2. The Appellee refuted Appellants allegation regarding acceleration of the debt because filing the complaint is proof the debt 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 iii

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.

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 2

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).

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 fully recognize the superior vantage point of the trial judge and should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. Id. at 1203 (emphasis added). 4

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 and sufficiency of the evidence, and that these findings come to this court on appeal clothed with a presumption of correctness and will not be disturbed unless it is shown that there is a total lack of substantial evidence 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.

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.

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.

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

A 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 case rather than a defense. See, 4 Fla. Prac., Civil Procedure R. 1.120, 120.5 (20102011 ed.) 8

inference alone. 37 Fla. Jur 2d Mortgages, Etc. 272. The Appellants pleading as a whole suffers from this fatal flaw. 1. The Appellants denial of the Appellees allegation that all conditions 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

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 provided any of the notices required by the document that the Plaintiff purports to 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 10

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 of Frost reveals that it is factually distinguishable from the case at bar and even supports the position taken by the Appellee regarding this issue. The Frost court reviewed an appeal taken from a summary judgment in favor of the lender in a foreclosure case. Id. at 906. The borrowers in Frost argued 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 Frost argued the defense did not refer to any language in the

mortgage in that case. However, the Frost court 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 Frost court 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 Frost because

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the borrowers in Frost provided 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 Frost the 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. See Langford 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 Plaintiffs claims are barred in whole or in part, because the facts alleged in the Complaint do not provide a basis for the proposition that the mortgage in question and/or the promissory note in question have been accelerated. In addition, with regard to all of the counts of the Complaint, neither the mortgage in question nor the promissory note in question has been accelerated. (R.:39)(emphasis added)
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The Florida Supreme Court `has noted that the Florida rule governing defenses is patterned after rule 12(b) of the Federal Rules of Civil Procedure, and that [t]he import 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)). 13

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 because it 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, without allegations of ultimate fact showing the illegality, does not constitute a sufficient defense. Finally, allegations that certain representations made were false without designating which ones were false and who made them simply does not constitute an acceptable pleading of a defense based upon false misrepresentation. Certainty is required when pleading defenses, and pleading conclusions of law unsupported by 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, 15

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. 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 competent evidence supporting these allegations. The trial courts order granting

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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. summary judgment should be affirmed. 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. 17 Therefore, the order granting

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). The Appellants 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 18

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 19

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 the banks 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 Frost court 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 summary judgment should be affirmed.

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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 21

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 75074 Tampa, FL 33675-0074

__________________________ Thomasina F. Moore, Esquire Florida Bar No. 57990 Fla. Bar No. 57990 Dennis W. Moore, Esquire Fla. Bar No. 0273340 BUTLER & HOSCH, P.A. 3185 South Conway Road, Suite E Orlando, Florida 32812 Telephone: (407) 381-5200 Fax: (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, Esquire Florida Bar No. 57990

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