Pearlstein v. Pennsylvania National Bank & Trust Co.

PER CURIAM. Appellants, Kenneth Pearlstein and Marilyn Pearlstein, appeal from a summary judgment of foreclosure entered in favor of appel-lee, Pennsylvania National Bank and Trust Company, and from an order denying their motion for rehearing. We treat appellants’ appeal as a nonfinal appeal in light of their unresolved pending counterclaim. See Fla. R.App.P. 9.130(a)(3)(C)(iv). We reverse the summary judgment of foreclosure finding that there are unresolved issues of material fact on the affirmative defense of payment of the debt. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); Landers v. Milton, 370 So.2d 368 (Fla.1979); Fine Arts Museums Found. v. First Nat'l in Palm Beach, a Div. of First Union Nat’l Bank of Fla., 633 So.2d 1179 (Fla. 4th DCA), review denied, 641 So.2d 1346 (Fla.1994). Further, the record reflects that appellee’s affidavits have not sufficiently rebutted the appellants’ affirmative defense of payment. See Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730 (Fla.1991). REVERSED AND REMANDED. WARNER, FARMER and SHAHOOD, JJ., concur.