NORMAN E. BUNNER AND SARAH LOU BUNNER, APPELLANTS,
v.
FLORIDA COAST BANK OF CORAL SPRINGS, N.A., SUCCESSOR BY MERGER TO FLORIDA COAST BANK OF MARGATE, APPELLEE
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The Bunners purchased a defective automobile financed through a Security Agreement with Florida Coast Bank. When the bank sought summary judgment on the Bunners' default, the court reversed, holding that the bank failed to address the Bunners' affirmative defense of breach of warranty despite the contract's notice clause subjecting the bank to all claims and defenses the Bunners could assert against the seller.
A counterclaimant seeking summary judgment when the defendant asserts affirmative defenses must either disprove those defenses by evidence or establish their legal insufficiency. The bank failed to meet this burden by ignoring the breach of warranty defense in its motion and supporting affidavits, despite acknowledging the contractual clause subjecting it to such defenses.
[1] A party seeking summary judgment must either disprove the opposing party's affirmative defenses with evidence or establish their legal insufficiency.
[2] A financial institution holding a retail installment contract is subject to the buyer's claims and defenses against the seller of goods or services obtained with the cont…
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Join FLexlaw to unlock all legal intelligence“NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF.”
The contractual notice clause that forms the basis of the Bunners' claim that the bank is subject to their breach of warranty defense.
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Join FLexlaw to unlock all legal intelligenceThe Bunners purchased a new automobile that experienced repeated mechanical difficulties requiring numerous repair calls. They instituted a breach of …
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HURLEY, Judge.
This appeal questions the propriety of a summary final judgment entered on behalf of the appellee/bank. We reverse.
• At the root of this case is the purchase of a new automobile by the appellants, Mr. and Mrs. Bunner. From the outset they experienced mechanical difficulties • which necessitated repeated and numerous repair calls. When these efforts to correct the problem failed, the Bunners instituted a breach of warranty action against the manufacturer, the dealer, and the appellee/bank which holds the “Security Agreement-Retail Instalment Contract” on the car. This agreement, attached as an exhibit to the Bunners’ complaint, contains the following bold print which is the basis for their suit against the bank:
NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. The bank responded by filing a counterclaim which alleged that the Bunners had defaulted on their payments, thus making the full balance due and payable. The Bun-ners answered, and by reference to their complaint, asserted the affirmative defense of breach of warranty. Next, the bank moved for summary judgment and filed affidavits directed solely to the amount of the Bunners’ indebtedness. The trial court granted summary judgment for the bank and this appeal ensued.
In order for a plaintiff, or in this case, a counterclaimant, to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses. Howdeshell v. First National Bank of Clearwater, 369 So. 2d 432 (Fla.2d DCA 1979); First Mortgage Investors v. Boulevard National Bank of Miami, 327 So. 2d 830 (Fla.3d DCA 1976); Mancino v. National Industrial Bank of Miami, 312 So. 2d 211 (Fla.3d DCA 1975); City of Hallendale v. State ex rel. Sage Corp., 298 So. 2d 437 (Fla.4th DCA 1974). In the case at bar, appellee/bank denied the Bunners’ affirmative defense but thereafter ignored the issue. The motion for summary judgment and affidavits filed in support thereof admit the existence of the contractual clause subjecting the bank to all claims and defenses which the Bunners’ could assert against the seller, but are silent on the asserted defense of breach of warranty. Thus, we hold as a matter of law, that the bank failed to meet its burden of establishing its entitlement to summary judgment. Accordingly, the summary final judgment entered herein is reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
LETTS, C. J., and HERSEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Alejandre v. Deutsche Bank Tr. Co. Americas, 44 So. 3d 1288 (Fla. 4th DCA 2010)…a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.’” Id. (quoting Bunner v. Fla. Coast Bank of Coral Springs, N.A., 390 So. 2d 126, 127 (Fla. 4th DCA 1980)). In such instances, “[t]he burden is on the plaintiff, as the moving party, to demonstrate that the defendant could not prevail.” Id. In Frost, a bank/mortgagee filed a foreclosure claim against a mortgagor. In response to…
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Cufferi v. Royal Palm Dev. Co., Inc., 516 So. 2d 983 (Fla. 4th DCA 1987)…ot be granted where there are issues of fact raised by affirmative defense which have not been effectively factually challenged and refuted. Johnson v. Headley, 419 So. 2d 401 (Fla. 4th DCA 1982); Bunner v, Florida Coast Bank of Coral Springs, N.A., 390 So. 2d 126 (Fla. 4th DCA 1980). In Bunner, this court said: In order for a plaintiff ... to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insuffi…
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Allstate Ins. Co. v. Arvida Corp., 421 So. 2d 741 (Fla. 4th DCA 1982)…ng summary judgments. “[T]o obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.” Bunner v. Florida Coast Bank, 390 So. 2d 126, 127 (Fla. 4th DCA 1980); see also Esteban v. Cordoba, 398 So. 2d 481 (Fla. 4th DCA 1981). National West did neither. If anything, the supporting and opposing affidavits in this case firmly indicate the existence of genuine issues of material fact r…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Boyd, 369 So. 2d 432 (Fla. 2d DCA 1979)
- First Mortg. Invs. v. Boulevard Nat'l Bank OF Miami, 327 So. 2d 830 (Fla. 3d DCA 1976)
- The City OF Hallandale v. State of Fla. ex rel. Sage Corp., 298 So. 2d 437 (Fla. 4th DCA 1974)
- Barber v. State, 312 So. 2d 211 (Fla. 1st DCA 1975)
- Mancino v. Nat'l Indus. Bank OF Miami, 312 So. 2d 211 (Fla. 3d DCA 1975)