By: Adam B. Brandon
Florida’s Fifth District Court of Appeal recently filed an opinion that emphasizes the importance of properly authenticating evidence in support of a motion for summary judgment. In Colon v. JP Morgan Chase Bank, N.A. et al., 2015 WL 477629 (Fla. 5th DCA Feb. 6, 2015), the court considered the argument of a borrower who appealed summary judgment of foreclosure on the grounds that the bank failed to authenticate certain evidence in support of its motion for summary judgment.
In this case, the borrower defaulted on his mortgage payments. In response, the bank elected to accelerate the amount due under the loan and to foreclose its mortgage on the property. However, the loan documents required that the bank provide the borrower with notice of default (together with an opportunity to cure the default) prior to acceleration. While the bank claimed that it sent a demand letter that provided sufficient notice, the borrower denied that he ever received the letter and raised the alleged lack of notice as an affirmative defense.
Unfortunately for the bank, its counsel failed to file an authenticated copy of the demand letter with the court. Since no authenticated evidence rebutted the borrower’s affirmative defense, the trial court erred when it granted summary judgment of foreclosure. As a result, the case now returns to the trial court for renewed litigation after spending over 18 months on appeal.
Under Florida law, unauthenticated documents cannot support a motion for summary judgment. Even a verified complaint is insufficient if it is not based on the personal knowledge of the loan officer who swears it is accurate. Furthermore, a party moving for summary judgment must serve all evidence that supports its motion at least 20 days before a summary judgment hearing.
In practice, this burden is not difficult to meet. The Fifth District Court of Appeal itself noted that bank would have prevailed if it authenticated the acceleration letter with an affidavit, attached the letter to the affidavit, and filed the affidavit 20 days before the hearing.
