DAVID J. SANDORO, APPELLANT,
v.
HSBC BANK, USA NATIONAL ASSOCIATION, AS TRUSTEE FOR WELLS FARGO HOME EQUITY ASSET BACKED CERTIFICATES, SERIES 2005-4, APPELLEE
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David Sandoro appeals a summary judgment foreclosure order. The Florida appellate court reversed, finding genuine issues of material fact regarding whether the lender provided proper notice of acceleration and whether it had valid standing to foreclose through a defective assignment executed years after the foreclosure complaint was filed.
The court reversed the summary judgment because the record reflected genuine issues of material fact regarding the notice of acceleration and the purported assignment of mortgage. When a plaintiff moves for summary judgment before the defendant answers, the plaintiff must establish not only that no genuine issue of material fact exists, but also that the defendant could not raise such issues if permitted to answer.
[1] A party is entitled to summary judgment only if the record demonstrates no genuine issue of material fact and entitlement to judgment as a matter of law.
[2] A plaintiff moving for summary judgment before a defendant answers must establish that the defendant could not raise any genuine issues of material fact if permitted to a…
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Join FLexlaw to unlock all legal intelligence“When a plaintiff moves for summary judgment before the defendant answers the complaint, the plaintiff "must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint."”
Establishes the heightened burden for summary judgment sought before the defendant answers, which is the procedural posture here
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Join FLexlaw to unlock all legal intelligenceOn April 10, 2007, Wells Fargo filed an unverified foreclosure complaint against Sandoro without attaching the required notice of acceleration or prom…
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David J. Sandoro appeals a final judgment of foreclosure entered after the trial court granted the motion for summary judgment filed by HSBC Bank, USA National Association, as Trustee for Wells Fargo Home Equity Asset Backed Certificates, Series 2005-4 (HSBC Bank). Because the record contains genuine issues of material fact, we reverse and remand for further proceedings.
On April 10, 2007, Wells Fargo Bank, N.A. (Wells Fargo), filed, an unverified complaint against Mr. Sandoro seeking to foreclose a mortgage on real property. Mr. Sandoro did not answer the complaint. Instead, he filed a motion to dismiss based on Wells Fargo’s failure to attach a notice of acceleration1 and the promissory note to the complaint. While Mr. Sandoro’s motion to dismiss was pending, Wells Fargo filed a motion for summary judgment. Mr. Sandoro filed an affidavit in opposition to Wells Fargo’s motion, contending, among other things, that Wells Fargo failed to satisfy the condition precedent of providing a notice of acceleration. Mr. Sandoro also noted that his motion to dismiss had not yet been resolved. The trial court denied Wells Fargo’s motion for summary judgment. Wells Fargo then filed a written response to Mr. Sandoro’s motion to dismiss, claiming that a notice of acceleration had been sent on November *73217, 2006.2 Wells Fargo did not provide any proof of mailing, however, and the copy of the notice of acceleration attached to Wells Fargo’s response was dated February 5, 2007.
Wells Fargo subsequently filed a motion to substitute HSBC Bank as the plaintiff. After the motion was granted, Mr. Sandoro filed an affidavit challenging HSBC Bank’s standing to foreclose the mortgage. In response, HSBC Bank filed a copy of the purported assignment of mortgage. The assignment reflected that the mortgage was transferred to HSBC Bank “on or before” April 3, 2007; however, the assignment was executed on October 9, 2008, and notarized on October 10, 2008. HSBC Bank then filed a motion for summary judgment, which was granted after a hearing.
We review the summary judgment de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fla. R. Civ. P. 1.510(c)). When a plaintiff moves for summary judgment before the defendant answers the complaint, the plaintiff “must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010).
Here, the record reflected genuine issues of material fact regarding the purported assignment of mortgage and whether Mr. Sandoro had been provided with a notice of acceleration. Therefore, the trial court erred in granting HSBC Bank’s motion for summary judgment and we reverse and remand for further proceedings.
Reversed and remanded for further proceedings.
WHATLEY and KELLY, JJ., Concur.
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Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696 (Fla. 4th DCA 2012)…no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint. Sandoro v. HSBC Bank, USA Nat’l Ass’n, 55 So. 3d 730, 732 (Fla. 2d DCA 2011). “The plaintiff must essentially anticipate the content of the defendant’s answer and establish that the record would have no genuine issue of material fact even if the answer were already on file.” Goncharuk, 62 So. 3d at 68…1 / 2
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Vasiliy Goncharuk & Marina Goncharuk v. HSBC Mortg. Servs., Inc., 62 So. 3d 680 (Fla. 2d DCA 2011)…avor of HSBC Mortgage Services, Inc. We reverse. The procedural posture of this case and the disputed issue of fact that requires reversal of the summary judgment appear to be virtually identical to those in Sandoro v. HSBC Bank, USA National Ass’n, 55 So. 3d 730 (Fla. 2d DCA 2011). The Goncharuks obtained financing on a home in Port Charlotte in 2006 from The Lending Group, which loaned the Goncha-ruks $223,000. A standard Fannie Mae/Freddie Mac Form 3010 1/01 mortgage secured the promissory note. The mort…
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Chiropractic ONE, Inc. v. State Farm Mut. Auto., 92 So. 3d 871 (Fla. 5th DCA 2012)…claims, and finished its analysis by declaring thát neither State Farm, nor the insureds owed any PIP benefits or payments for treatment to Chiropractic One. We, of course, review the final summary judgment de novo. See, e.g., Sandoro v. HSBC Bank, 55 So. 3d 730, 731 (Fla. 2d DCA 2011); Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1106 (Fla. 4th DCA 2010). Likewise, statutory interpretation is generally a question of law subject to de novo review. See, e.g., Quarantello v. Leroy, 977 So. 2d 648, 651 (…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Est. OF Naomi Githens v. BON Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272 (Fla. 2d DCA 2006)
- BAC Funding Consortium Inc. Isaoa/Atima v. Ginelle Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010)