DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

DIANA JELIC,

Appellant,

v.

CITIMORTGAGE, INC., as Successor by Merger with FIRST 

NATIONWIDE MORTGAGE CORPORATION,

Appellee.

No. 4D13-2933

[November 19, 2014]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Roger B. Colton, Judge; L.T. Case No. 

502009CA007486XXXXMB.

Peter Ticktin, Josh Bleil, Kendrick Almaguer, and Michael Vater of The 

Ticktin Law Group, P.A., Deerfield Beach, for appellant.

Nancy M. Wallace, Michael J. Larson, and Ryan D. O’Connor of 

Akerman LLP, Tallahassee, and William P. Heller of Akerman LLP, Fort 

Lauderdale, for appellee.

FORST, J.

In this foreclosure action, Appellant Diana Jelic appeals the trial court’s 

entry of final summary judgment in favor of the appellee, CitiMortgage, 

Inc. Appellant argues the trial court reversibly erred by (1) entering 

summary judgment despite CitiMortgage’s failure to refute her affirmative 

defenses of unclean hands and failure to satisfy the conditions precedent, 

and (2) admitting the affidavit in support of the motion for summary 

judgment. For the reasons stated below, we disagree and affirm the 

summary judgment of foreclosure.

Standard of Review

We review an order granting summary judgment de novo. Volusia Cnty. 

v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2002). 

“Summary judgment cannot be granted unless the pleadings, depositions, 
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answers to interrogatories, and admissions on file together with affidavits, 

if any, conclusively show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.”

Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So. 3d 1211, 1213 (Fla. 

4th DCA 2009) (quoting Fini v. Glascoe, 936 So. 2d 52, 54 (Fla. 4th DCA 

2006)). When evaluating summary judgment evidence, the court must 

“draw every reasonable inference in favor of the non-moving party.” Knight 

Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786, 788 (Fla. 4th DCA 

1995).

CitiMortgage Sufficiently Rebutted Appellant’s Affirmative Defenses

“Before a plaintiff is entitled to a summary judgment of foreclosure, the 

plaintiff must either factually refute the alleged affirmative defenses or 

establish that they are legally insufficient to defeat summary judgment.” 

Id. In the instant case, Appellant alleged a wide array of violations on the 

part of CitiMortgage, the prior holders of the note, and the entire mortgage 

lending industry.1 Generic claims that fail to allege any particularized 

conduct on the part of the foreclosing bank are insufficient to assert a 

claim of unclean hands. See Tribeca Lending Corp. v. Real Estate Depot, 

Inc., 42 So. 3d 258, 263 (Fla. 4th DCA 2010) (holding no valid unclean 

hands defense existed where plaintiff’s conduct was not the cause of 

alleged harm to defendant). Defendants in a foreclosure action cannot 

escape a judgment simply by attempting to overwhelm the court with the 

number of violations alleged. Throwing the proverbial “everything but the 

kitchen sink” at a plaintiff’s motion for summary judgment does not, alone, 

create a sufficient issue of material fact to prevent summary judgment. 

The alleged defenses must still be factually and legally sufficient. In the 

instant case, they were not; in fact, Appellant stated in her deposition that 

CitiMortgage did not do “anything wrong with regard to [her] loan.”

Similarly, Appellant claims CitiMortgage failed to provide her with 

notice of acceleration, as required by the note. Appellant bases this 

argument on the fact that she does not recall receiving such notice. 

However, Appellant conceded that she had no reason not to believe the 

notice was sent and CitiMortgage submitted an affidavit stating that notice 

was sent, along with an attached copy of the letter and records showing 

the letter was mailed. See Camerota v. Kaufman, 666 So. 2d 1042, 1045 

(Fla. 4th DCA 1996) (noting the rebuttable presumption that mailed letters 

will be received by the recipient).

1 For example, Appellant accused the mortgage lending industry of acting “with 

the purpose of deriving great profits.”
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Because none of Appellant’s defenses were legally sufficient (and, in 

several instances, were contradicted by Appellant’s deposition testimony), 

her claim that CitiMortgage failed to refute her affirmative defenses is 

rejected. The trial court properly found that the undisputed evidence 

shows CitiMortgage complied with all conditions precedent to foreclosure.

Affidavit Submitted by CitMortgage

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.
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Affirmed.

DAMOORGIAN, C.J., and CIKLIN, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.