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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT JULY TERM 2004
CHERYL MCKENNA,
Foreclosure. We reverse.
Appellant,
The standard of review of the entry of summary
judgment is de novo. See Volusia County v.
v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000). A party moving for summary
CAMINO REAL VILLAGE
judgment must show conclusively the absence of
ASSOCIATION, INC.,
any genuine issue of material fact and the court
must draw every possible inference in favor of the
Appellee.
non-moving party. See Bruckner v. City of Dania
Beach, 823 So. 2d 167, 170 (Fla. 4th DCA 2002).
If the evidence raises any issue of material fact, if
CASE NO. 4D03-4786
it is conflicting, if it will permit different reasonable
inferences, or if it tends to prove the issue, it
should be submitted to the jury as a question of
Opinion filed July 21, 2004
fact to be determined by it. Id.
Appeal from the Circuit Court for the Fifteenth
All owners of condominiums in Camino Real
Judicial Circuit, Palm Beach County; John D.
Village are necessarily members of the
W e s s e l , J u d g e ; L . T . C a s e N o .
Association. On August 29, 2002, the Association
502002CA013001XXRFAW.
sent McKenna a letter stating that she owed
money for past due assessments, interest, late
Richard W. Glenn of Law Office of Richard W.
fees, and attorneys' fees and cos ts. The letter
Glenn, West Palm Beach, for appellant.
informed McKenna that the Association filed a
Claim of Lien against her property and included a
David A. Core of St. John, Core & Lemme,
copy of the Claim of Lien for her review. The
P.A., West Palm Beach, for appellee.
letter also stated that if the Association did not
receive payment by October 1, 2002, the
HAZOURI, J.
Association would bring legal action to foreclose
the Lien and for a judgment against McKenna
Camino Real Village Association, Inc. (the
personally. The Claim of Lien, which was
Association) filed a Complaint for Foreclosure,
recorded on August 30, 2002, states that
Damages, Pre-Judgment Interest, Costs, and
McKenna owes the Association the following
Attorneys' Fees against Cheryl McKenna. The
assessments:
suit is based on a Claim of Lien filed against
McKenna's condominium for unpaid assessments.
Due
Amount
McKenna denied owing the amounts alleged and
asserted several affirmative defenses including the
July 1, 2002
$.78
Association's failure to comply with its regulations
August 1, 2002
$503.82
regarding notice of delinquency in payment of
August 1, 2002
$229.89
assessments and acceleration of future
September 1, 2002 $ 2 2 9 . 8 9 ( a c c e l e r a t e d
assessments. The Association filed a Motion for
assessment)
Summary Judgment. The trial court granted the
October 1, 2002
$ 2 2 9 . 8 9 ( a c c e l e r a t e d
motion and entered a Summary Final Judgment of
assessment)

November 1, 2002 $ 2 2 9 . 8 9 ( a c c e l e r a t e d
McKenna argues that she established a genuine
assessment)
issue of material fact when she filed the
November 1, 2002 $ 5 0 3 . 8 2 ( a c c e l e r a t e d
Affirmative Defenses alleging that: 1) she did not
assessment)
owe the amounts due under the Claim of Lien and
December 1, 2002 $ 2 2 9 . 8 9 ( a c c e l e r a t e d
2) the Association had failed to comply with the
assessment)
procedural requirements set out in the Declaration
The Declaration of Condominium and Bylaws
and Bylaws, including providing prior notice of the
allow the Association to accelerate assessments if
acceleration to McKenna. When the Association
a unit owner is in default in the payment of an
filed its Motion for Summary Judgment, it
assessment. The relevant provisions are as
addressed the issue of amount due by submitting
follows:
an affidavit. However, the Association failed to
address McKenna's allegations that she did not
Paragraph 19.2 of the Declaration of
receive proper notice of the acceleration and that
Condominium:
the Association did not follow its outlined
procedures regarding delinquency. Therefore,
Interest on Default. Assessments and
McKenna contends that the trial court should not
installments thereon, not paid when due, shall
have entered final summary judgment in favor of
bear interest from the date when due until paid
the Association. We agree.
at the highest rate allowed in Florida which is
not then usurious. In the event any unit owner
In Berg v. Bridle Path Homeowners
shall be more than thirty (30) days delinquent in
Association, 809 So. 2d 32 (Fla. 4th DCA 2002),
the payment of any assessment, the Board of
this court dealt with a similar situation and
directors, at its discretion, may upon seven (7)
reversed the entry of final summary judgment. In
days written notice to the unit owner, declare
Berg, the homeowners association filed suit
due and payable all assessments applicable to
against Berg seeking to foreclose assessment liens
such unit for the fiscal year of the Association in
recorded against the property. Id. at 33. In her
which the delinquency occurs.
answer, Berg asserted that the liens were
improper because the association had failed to
Article VII, Section 3 of the Bylaws:
comply with certain requirements in its own
declarations and bylaws. The trial court ruled that
Acceleration of Assessment Installments Upon
Berg had failed to prove her "defenses" by the
Default. If a unit owner shall be in default in the
greater weight of the evidence and entered
payment of an installment upon any assessment,
judgment in favor of the association. Id. at 34.
the Board of Directors may accelerate the
However, on appeal this Court reversed. This
remaining monthly installments for the fiscal
Court held that the trial court erroneously shifted
year upon notice thereof to the unit owner and,
the burden of proof. Once a defendant makes a
thereupon, the unpaid balance of the assessment
specific denial of a particular element of the claim,
shall become due upon the date stated in the
the plaintiff has the burden of proving its
notice, but not less than fifteen (15) days after
entitlement to judgment. Berg's affirmative
the delivery of or the mailing of such notice to
defenses placed the burden on the association to
the unit owner.
prove every material allegation of its complaint
which is denied by the party defending against the
Both of these provisions require the Association to
claim. This Court stated:
give the unit owner proper notice prior to any
acceleration of assessments.
We hold that in order to prevail on a suit to
foreclose an assessment lien, a homeowners
-2-

association is obligated to show that it has properly
at least a question of fact whether the Association
levied the assessment in accordance with the
complied with its provisions regarding acceleration
community's declaration of restrictive covenants
of future assessments. We, therefore, reverse the
and by-laws when the defendant challenges the
entry of Final Summary Judgment and remand for
lack of compliance "specifically and with
further proceedings consistent with this opinion.
particularity."
REVERSED AND REMANDED.
Id.
GUNTHER and STEVENSON, JJ., concur.
In the instant case, the Association argues that
McKenna failed to create issues of fact because
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY
she did not file any memoranda or affidavits in
FILED MOTION FOR REHEARING.
opposition to its Motion for Summary Judgment.
However, applying the reasoning in Berg, once
McKenna filed the Affirmative Defenses
asserting the Association's failure to comply with
the requirements in the Declaration and Bylaws,
the Association had the burden to prove that it
complied with the requirements in its Declaration
and Bylaws.
When the Association issued the Claim of Lien
on August 29, 2002, the Association listed both the
July 1, 2002 assessment and the August 1, 2002
assessments as being delinquent. The Association
used those delinquent payments as the basis for
the acceleration of future assessments. However,
when the Claim of Lien was filed, the only
assessment that was more than thirty days
delinquent was the $.78 that was due on July 1,
2002. The August assessments were not yet more
than thirty days delinquent. Therefore, the only
delinquent assessment that could form the basis
for the acceleration of future payments was the
$.78. In addition, the Association has not provided
any evidence to establish that it gave McKenna
the written notice required in the provisions prior
to filing the Claim of Lien which accelerated the
future payments.
McKenna concedes that she did not make the
payments required in August; however, the
Association's Complaint sought damages not only
for the August payment, but also based on
accelerated future assessments through the end of
the year. It appears from the record that there is
-3-

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