Lazuran v. Citimortgage, Inc.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT January Term 2010 STELIAN LAZURAN, Appellant, v. CITIMORTGAGE, INC., DAVID STERN, P.A., UNKNOWN SPOUSE OF STELIAN LAZURAN, if any, ADRIANA ANCUTA LAZURAN a/k/a ADRIANA LAZURAN, UNKNOWN SPOUSE OF ADRIANA ANCUTA LAZURAN a/k/a ADRIANA LAZURAN, if any, ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS, THE BOULEVARD FOREST LAKE MANAGEMENT ASSOCIATION, INC., CITIBANK, N.A. SUCCESSOR BY MERGER TO CITIBANK, FEDERAL SAVINGS BANK, JOHN DOE, and JANE DOE AS UNKNOWN TENANTS IN POSSESSION, Appellees. No. 4D09-1340 [June 9, 2010] GERBER, J. We reverse the circuit court s final summary judgment of foreclosure against Stelian Lazuran (the defendant ). Citimortgage s complaint alleged that all conditions precedent to the mortgage note s acceleration had been fulfilled, and Citimortgage s affidavit in support of its motion for summary judgment stated [t]hat each a n d every allegation in the Complaint is true. Such a conclusory allegation is insufficient to refute the defendant s affirmative defense that Citimortgage failed to provide him with notice of the acceleration pursuant to the procedures specified in paragraph 22 of the mortgage. Therefore, reversal is required. See Frost v. Regions Bank, 15 So. 3d 905, 906-07 (Fla. 4th DCA 2009) ( Because the bank did not meet its burden to refute the Frosts lack of notice and opportunity to cure defense, the bank is not entitled to final final summary judgment of foreclosure. ). Reversed. POLEN and LEVINE, JJ., concur. * * * Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ronald J. Rothschild, Judge; L.T. Case No. 08-45895 (08). Mitchell Sens of Law Office of Mitchell Sens, P.A., Plantation, for appellant. Jennifer E. Seipel of Butler & Hosch, P.A., Orlando, for appellee Citimortgage Inc. No appearance for other appellees. Not final until disposition of timely filed motion for rehearing. 2

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