       Third District Court of Appeal
                               State of Florida

                         Opinion filed September 3, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D13-2240
                          Lower Tribunal No. 11-23031
                              ________________


                         Carmen A. Ramos, et al.,
                                   Appellants,

                                        vs.

                             Citimortgage, Inc.,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Marvin H.
Gillman, Judge.

      Robert Flavell, P.A., and Robert Flavell, for appellants.

     Akerman LLP, and Nancy M. Wallace and Kristen M. Fiore (Tallahassee);
Akerman LLP, and William P. Heller (Fort Lauderdale), for appellee.

Before SALTER, EMAS and SCALES, JJ.

     SCALES, J.
      The Ramoses, Defendants below, appeal a final summary judgment of

foreclosure in favor of CitiMortgage, Plaintiff below. We reverse because the

summary judgment evidence did not rebut the Ramoses’ affirmative defenses,

which alleged they had not received a default notice and that the default notice

allegedly sent by CitiMortgage was not properly delivered as required by the

express provisions of its mortgage.

                                      I.       Facts

      Defendant, Carmen Ramos, executed a promissory note in favor of

CitiMortgage in August 2005. The note was secured by a mortgage encumbering

property in Miami, Florida.

      When Mrs. Ramos defaulted on her loan in April 2009, CitiMortgage

brought the instant foreclosure action; a copy of the note and mortgage was

attached to CitiMortgage’s complaint.

      Pursuant to Paragraph 22 of the mortgage, CitiMortgage was required to

send Mrs. Ramos written default notice prior to accelerating the amounts due under

the note and foreclosing on the mortgage. The mortgage provides for specific

information to be included in the default notice, such as notice of the default and

how and when the default can be cured.

      Pursuant to Paragraph 15 of the mortgage, all notices sent by first class mail

are required to be sent to the address of the mortgaged property unless the



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borrower has provided CitiMortgage with an alternate address.           Alternatively,

Paragraph 15 allows CitiMortgage to comply with the notice requirements, other

than via first class mail, by actually delivering such notices to the property address.



      The Ramoses filed a motion to dismiss CitiMortgage’s foreclosure

complaint, alleging, among other things, that CitiMortgage had failed to comply

with an express condition precedent to filing the lawsuit. Specifically, citing the

relevant language of the mortgage, the Ramoses argued that CitiMortgage had

failed to send the required default notice to Mrs. Ramos at the mortgaged property

address.

      After the motion to dismiss was denied, the Ramoses filed their answer and

affirmative defenses.    The Ramoses denied CitiMortgage’s allegation that all

conditions precedent had been performed. Also, the Ramoses asserted, as an

affirmative defense, that CitiMortgage failed to deliver the required default notice

to Mrs. Ramos, and therefore had not complied with a condition precedent to

foreclosure. The Ramoses also asserted they never received the default notice.

      CitiMortgage filed a reply to the affirmative defenses, attaching a copy of

the default notice it purportedly had mailed to Mrs. Ramos in October 2010. This

default notice indicated it had been mailed to a post office box in Coral Gables,

Florida, rather than to the mortgaged property address.



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      CitiMortgage then filed a motion for summary judgment. CitiMortgage’s

summary judgment motion was supported by two affidavits, one of which attached

a copy of the October 2010 default notice. The Ramoses filed no affidavits or

other summary judgment evidence.

      At the summary judgment hearing, the Ramoses argued that CitiMortgage

had failed to establish an absence of a genuine issue of fact, i.e., that CitiMortgage

had complied with the mortgage’s default notice requirements. The trial court

disagreed and entered final summary judgment of foreclosure for CitiMortgage.

We reverse.

                                    II.    Analysis

      We review a trial court’s entry of a final summary judgment de novo.

Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000); Rodriguez v. Sec. Nat’l Ins. Co., 138 So. 3d 520, 522 (Fla. 3d DCA 2014).

For a plaintiff to be entitled to a summary judgment, the plaintiff must establish

that no genuine issue of material fact exists. Muñoz Hnos, S.A. v. Editorial

Televisa Int’l, S.A., 121 So. 3d 100, 103 (Fla. 3d DCA 2013). Additionally, the

summary judgment evidence must disprove all affirmative defenses raised by the

defendant. GMT Constr., Inc. v. Gulfside Supply, Inc., 116 So. 3d 515, 517 (Fla.

3d DCA 2013) (“[W]here affirmative defenses are plead [sic], the movant for

summary judgment is similarly burdened and must conclusively refute the



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affirmative defenses.” (citing Calarese v. Weissfisch, 87 So. 3d 1225, 1227 (Fla.

3d DCA 2012))).

      Where, as here, a mortgage contains a provision which specifically requires

a default notice be sent to the borrower prior to foreclosure, and the defendant

expressly pleads both that (a) the plaintiff has failed to comply with such condition

precedent to foreclosure, and (b) the defendant has not received the notice, for the

trial court to enter summary judgment, the plaintiff must establish—through

summary judgment evidence—either that (1) the plaintiff complied with the

mortgage documents’ notice provisions, or (2) the defendant received the default

notice. See DiSalvo v. SunTrust Mortg., Inc., 115 So. 3d 438, 439-40 (Fla. 2d

DCA 2013) (citing Morrison v. U.S. Bank, N.A., 66 So. 3d 387, 387 (Fla. 5th DCA

2011) (concluding the bank’s filing of an unathenticated notice letter did not

support summary judgment where the defendant asserted she had not received a

notice of default)); Bryson v. Branch Banking & Trust Co., 75 So. 3d 783 (Fla. 2d

DCA 2011) (reversing grant of summary judgment where the plaintiff asserted

affirmative defense that bank had not complied with condition precedent and

nothing established bank gave homeowner notice of default as required by the

mortgage).

      In this case, because the Ramoses’ affirmative defenses alleged that

CitiMortgage failed to comply with conditions precedent and that they had not



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received the required default notice, the summary judgment evidence had to

conclusively disprove those allegations. See GMT Constr., Inc., 116 So. 3d at 517.

      While CitiMortgage’s affidavit attached a copy of the default notice mailed

to Mrs. Ramos, the default notice was addressed to a post office box in Coral

Gables, rather than the address of the mortgaged property as required in the

mortgage. There was no summary judgment evidence indicating that the Ramoses

provided the alternative address to CitiMortgage as contemplated in Paragraph 15

of the Mortgage. Alternatively, there was no record evidence that the Ramoses had

actually received the default notice. Hence, CitiMortgage did not meet its burden

to disprove the Ramoses’ affirmative defenses so as to be entitled to summary

judgment.

      CitiMortgage also argues that CitiMortgage should be excused from

complying with the default notice condition precedent required by its mortgage

because such compliance would have been futile. CitiMortgage asserts that if the

Ramoses were unable to meet their monthly note obligation of around $2000, they

certainly would not have been able to cure the default by paying the almost

$58,000 in accrued amounts due under the note.

      While CitiMortgage’s argument might have practical merit, the trial court

obviously never reached the “futility” issue, and, on this record, we certainly are




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unable to conclude, as a matter of law, that sending the required default notice to

the Ramoses as required by the mortgage would have been a futile gesture.

                             III.   Conclusion

      Accordingly, we reverse the final judgment of foreclosure and remand the

case for proceedings consistent with this opinion.




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