BORROWER’S CONCLUSORY AFFIDAVIT INSUFFICIENT | Key Points

1. The Third DCA affirmed the entry of a foreclosure judgment in favor of the bank finding the borrower’s affidavit in opposition to summary judgment lacked sufficient evidentiary support to create a genuine issue as to the bank’s standing. Passariello v. Bank of New York, No. 3D21-1674, 2022 WL 2821566 (Fla. 3d DCA July 20, 2022).

2. The Court explained under Florida Rule of Civil Procedure 1.510(c)(4), affidavits opposing summary judgment must: (1) be based on the personal knowledge of the affiant, (2) include facts that would be admissible in evidence, and (3) demonstrate the affiant is competent to testify. The Court concluded Passariello’s affidavit failed to satisfy these requirements and contained nothing more than conclusory speculation.

3. The Court, quoting multiple cases, explained that conclusory affidavits based on “speculation, surmise and conjecture” were legally insufficient and could not prevent entry of summary judgment. This decision is a welcome addition to our summary judgment jurisprudence and will prove helpful in avoiding trials based solely on paper issues that lack evidentiary support

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