          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT
                             July Term 2014

                         WILLIAM C. SAMPLE,
                              Appellant,

                                   v.

                      WELLS FARGO BANK, N.A.,
                             Appellee.

                            No. 4D13-2883

                          [November 12, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Roger    B.    Colton,    Judge;   L.T.    Case    No.
502008CA030895XX.

   Ronnie D. Dykes of Ronnie D. Dykes, P.A., Boca Raton, for appellant.

   Amanda Renee Murphy of Butler & Hosch, P.A., Orlando, for appellee.

MAY, J.

    A borrower appeals a final summary judgment of foreclosure.       He
argues the trial court erred in entering summary judgment because    the
bank failed to overcome his fourteen affirmative defenses. While      we
disagree with him about thirteen of them, we do agree that one of    the
affirmative defenses precluded the entry of summary judgment.        We
therefore reverse and remand.

   The borrower and Mortgage Electronic Registration Systems, Inc.,
acting solely as nominee for Countrywide Bank, N.A. (“MERS”), executed
a mortgage and note. When the borrower failed to pay his monthly
payment, MERS sent a notice of default to the borrower.

   Several months later, MERS executed an assignment of mortgage in
favor of the bank. The bank filed a complaint seeking to foreclose the
mortgage, reestablish the lost note, reform the mortgage, and for damages
on the promissory note. The bank voluntarily dismissed the lost note
count and filed the original note, mortgage, and assignment of mortgage.
The borrower propounded a request for production; the bank moved for a
protective order.

    More than three years later, the bank moved for summary judgment.
In support of its motion, the bank filed the payment history, affidavit of
costs, and affidavit of indebtedness. The borrower then filed an answer
and asserted fourteen affirmative defenses. The bank moved to strike the
affirmative defenses and in the alternative replied to them. The borrower
filed an opposition to summary judgment, a motion for continuance and
mediation, and a motion to compel better responses to his request for
production.

   The trial court heard the bank’s motion and entered a final summary
judgment for the bank. The final judgment contained the legal description
requested in the reformation count of the complaint. The trial court did
not rule on the borrower’s affirmative defenses, the bank’s motion for
protective order, or the borrower’s motion to compel better responses. The
borrower moved for rehearing or to set aside the order, which was denied.
The borrower now appeals.

   The borrower argues error in the entry of final summary judgment
because of his asserted affirmative defenses and pending discovery. The
bank responds that the affirmative defenses lacked the requisite specificity
to be legally sufficient and were refuted. The bank also asserts that having
met its burden to provide competent evidence in support of its complaint,
the borrower failed to show the existence of a genuine issue of material
fact.

   We have de novo review. McLean v. JP Morgan Chase Bank Nat’l Ass’n,
79 So. 3d 170, 172 (Fla. 4th DCA 2012).

    “When a party raises affirmative defenses, . . . ‘summary judgment
should not be granted where’” the affirmative defenses are not refuted.
Alejandre v. Deutsche Bank Trust Co. Ams., 44 So. 3d 1288, 1289 (Fla. 4th
DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co., 516 So. 2d 983, 984
(Fla. 4th DCA 1987)). “[T]he plaintiff must either factually refute the
alleged affirmative defenses or establish that they are legally insufficient
to defeat summary judgment.” Knight Energy Servs., Inc. v. Amoco Oil Co.,
660 So. 2d 786, 788 (Fla. 4th DCA 1995) (citing Cufferi, 516 So. 2d at 984).

   In his fourteenth affirmative defense, the borrower asserted that the
mortgage attached to the complaint did not contain the legal description
of his property, prohibiting the bank from foreclosing on it. The bank pled
a count for reformation of the mortgage, but the motion for summary
judgment did not request reformation of the mortgage. And, the record,

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including the bank’s affidavits, failed to either prove reformation of the
mortgage or refute the borrower’s affirmative defense.

    The bank admitted the mortgage did not include an accurate legal
description, and alleged the inaccurate legal description was a mutual
mistake. The bank now asserts that its motion for summary judgment
asserted the lack of any genuine issue of material fact and was sufficient
to reform the mortgage. However, the borrower denied the bank’s
allegation of a mutual mistake and asserted the incorrect legal description
as his fourteenth affirmative defense.

   The fourteenth affirmative defense was clear and specific. Although
one of the bank’s affidavits attested that the complaint’s allegations were
true and correct, the affiant did not, and could not, attest that the incorrect
legal description was a mutual mistake. That is because one person
cannot attest to another person’s knowledge. See West Edge II v.
Kunderas, 910 So. 2d 953, 954 (Fla. 2d DCA 2005). In short, a genuine
issue of material fact existed, precluding summary judgment.

   “A court of equity has the power to reform a written instrument where,
due to a mutual mistake, the instrument as drawn does not accurately
express the true intention or agreement of the parties to the instrument.”
Providence Square Ass’n, Inc. v. Biancardi, 507 So. 2d 1366, 1369 (Fla.
1987) (citations omitted). “This principle . . . can be applied to correct an
erroneous land description in order to protect a person’s rights in real
property.” Id. (citations omitted). This does not however eliminate the
requirement that the motion for summary judgment state with
particularity the grounds upon which it is based. Gee v. U.S. Bank Nat’l
Ass’n, 72 So. 3d 211, 214 (Fla. 5th DCA 2011) (quoting Fla. R. Civ. P.
1.510(c)).

   In Willis v. Bank of New York Mellon, 115 So. 3d 1075 (Fla. 4th DCA
2013), we addressed a similar issue. The trial court granted reformation
of a mortgage to include a correct legal description as part of a summary
judgment of foreclosure. Id. at 1075. “The appellee [b]ank’s motion for
summary judgment and accompanying notice, however, did not raise the
issue of reformation as an issue to be addressed at the summary judgment
hearing. Because of the lack of notice, the court erred in reforming the
mortgage to add a legal description.” Id. (citation omitted).

   Here, the bank’s motion for summary judgment was likewise
insufficient to put the borrower on notice of the bank’s intention to reform
the mortgage. Because the motion failed to provide notice to the borrower,
and because the bank failed to prove reformation or refute the affirmative

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defense of an incorrect legal description, the trial court erred in entering
final summary judgment.

   We therefore reverse the final summary judgment of foreclosure and
remand the case for further proceedings. We find no merit in the other
issues raised.

   Reversed and Remanded.

STEVENSON and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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