Bakst v. Federal Deposit Insurance Corp.

PER CURIAM. The defendant, Alvin Bakst, appeals from a final summary judgment entered in favor of the plaintiff, Federal Deposit Insurance Corp., as receiver of First American Bank and Trust [FDIC]. The affidavit of indebtedness failed to disprove the affirmative defenses raised by the defendant and FDIC failed to demonstrate the legal insufficiency of the defenses. See Campagna v. Dicus, 606 So.2d 1278 (Fla. 2d DCA 1992). Therefore, FDIC is not entitled to a summary judgment. Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Fort Lauderdale, 338 So.2d 905 (Fla. 3d DCA 1976); Underwriters Ins. Co. v. Sisung, 174 So.2d 461 (Fla. 3d DCA 1965). Moreover, the defendant concedes that he is liable on the promissory note. However, genuine issues of material fact still exist as to whether payments were properly credited and as to the actual amount of money that is still due. We hold that final summary judgment was improper where genuine issues of material fact remain unresolved, Moore v. Morris, 475 So.2d 666 (Fla.1985); Holl v. Talcott, 191 So.2d 40 (Fla.1966), and we reverse and remand this case for further proceedings consistent with this opinion.