DIANA JELIC v. CITIMORTGAGE INC FIRST NATIONWIDE MORTGAGE CORPORATION (2014)

Was Properly Considered by the Trial Court

As a secondary issue (though interwined with the affirmative defenses argument), Appellant contends that the affidavit submitted by CitiMortgage in support of its motion for summary judgment failed to meet the requirements of Florida Rule of Civil Procedure 1.510(e).   This rule requires that “sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”  Id. In the instant case, CitiMortgage submitted an affidavit swearing to the authenticity of the business records used to determine the amounts owed.   The affiant attached a copy of the payment history going back to November 2005.   Although Appellant alleges the affiant referred to other documents to determine the amounts owed, this is the only document the affiant referred to in her deposition.   Therefore, CitiMortgage has met the requirements of Rule 1.510(e) that “copies of all papers or parts thereof referred to in an affidavit” be attached.

Additionally, while CitiMortgage included the allegedly deficient affidavit in its motion for summary judgment, nothing in the record provided shows that Appellant objected to the affidavit during the summary judgment proceedings.   “[F]ailure to timely object to the sufficiency of [CitiMortgage's] affidavit when it was presented on motion for summary judgment is fatal to this claim.”   Vilvar v. Deutsche Bank Trust Co. Ams., 83 So.3d 853, 856 (Fla. 4th DCA 2011).

Conclusion

In November 2008, Appellant ceased making her monthly mortgage payments on the subject property.   This resulted in a foreclosure complaint filed by CitiMortgage, the then-holder of a promissory note for the property.   As CitiMortgage was able to refute Appellant's affirmative defenses as factually and/or legally insufficient, and established an absence of disputed issues of material fact (as distinct from disputed but not supported theories ), the trial court properly granted summary judgment with respect to CitiMortgage's foreclosure complaint.

Affirmed.

Damoorgian, C.J., and Ciklin, J., concur.

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Not final until disposition of timely filed motion for rehearing.

FOOTNOTES

FN1. For example, Appellant accused the mortgage lending industry of acting “with the purpose of deriving great profits.”.  FN1. For example, Appellant accused the mortgage lending industry of acting “with the purpose of deriving great profits.”