OMAR HABER, APPELLANT,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATE HOLDERS FOR ARGENT SECURITIES, INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-W2, APPELLEE
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Omar Haber appeals a final summary judgment of foreclosure entered against him by Deutsche Bank. The court affirmed the bank's standing to foreclose but reversed the summary judgment because the bank failed to demonstrate it provided the required notice and opportunity to cure before accelerating the mortgage.
The bank was not entitled to summary judgment because it failed to refute the borrower's affirmative defense regarding lack of notice and opportunity to cure. A mortgagee must refute all affirmative defenses of the mortgagor or show they are legally insufficient to be entitled to summary judgment.
[1] A mortgagee must refute all affirmative defenses of the mortgagor or demonstrate their legal insufficiency to be entitled to summary judgment.
[2] A lender must provide a borrower with notice and an opportunity to cure a default before accelerating sums secured by a security instrument and initiating foreclosure pro…
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Join FLexlaw to unlock all legal intelligence“In order to be entitled to summary judgment, a mortgagee must refute all of the affirmative defenses of the mortgagor or show that they are legally insufficient.”
Establishes the legal standard that a mortgagee seeking summary judgment bears the burden of refuting all affirmative defenses.
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Join FLexlaw to unlock all legal intelligenceOmar Haber was the borrower under a mortgage agreement with Deutsche Bank National Trust Company as trustee. The mortgage agreement required the lende…
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Omar Haber appeals the trial court’s entry of a final summary judgment of foreclosure in favor of Deutsche Bank National Trust Company (the bank). He argues that summary judgment was improper because the bank lacked standing to file the foreclosure suit and failed to refute his affirmative defense that the bank did not provide him with the requisite notice and opportunity to cure required by the mortgage agreement. We affirm as to the standing issue without discussion, but we reverse the final summary judgment because the bank failed to refute appellant’s affirmative defense regarding notice and opportunity to cure.
The mortgage agreement states, in pertinent part:
*566Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument ... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.
There is no evidence within the record showing that the bank provided appellant with the requisite notice and opportunity to cure.
An order granting summary judgment is reviewed de novo. Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009) (citation omitted). In order to be entitled to summary judgment, a mortgagee must refute all of the affirmative defenses of the mortgagor or show that they are legally insufficient. Woodrum v. Wells Fargo Mortg. Bank, N.A., 73 So.3d 873, 874 (Fla. 4th DCA 2011) (citing Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009)). Because the bank failed to show that it provided appellant with the requisite notice and opportunity to cure, it was not entitled to a final summary judgment of foreclosure.
Affirmed in part, Reversed in part and Remanded.
TAYLOR, GERBER and LEVINE, JJ., concur.
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Fla. Inv. Grp. 100, LLC v. Annalisa Lafont, 271 So. 3d 1 (Fla. 4th DCA 2019)
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Hershel Bryant and Betty Bryant v. Geovera Specialty Ins. Co., 271 So. 3d 1013 (Fla. 4th DCA 2019)…h count because GeoVera complied with the terms of the insurance contract by participating in the appraisal process and paying in a timely manner. B. Standard of Review A summary judgment is reviewed de novo. Haber v. Deutsche Bank Nat’l Tr. Co., 81 So. 3d 565, 566 (Fla. 4th DCA 2012). C. Whether GeoVera’s Post-Suit Payment was a Confession of Judgment The first issue we address is whether GeoVera’s payment of the appraisal award constituted a confession that it breached the policy by applying the $1,00…
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JBJ Inv. OF S. Fla., Inc. v. S. Title Grp., Inc., 251 So. 3d 173 (Fla. 4th DCA 2018)…to ensure the accuracy of the legal description of the properties that would be encumbered by the mortgage. We agree. Standard of Review The standard of review for orders granting summary judgment is de novo. Haber v. Deutsche Bank Nat'l Tr. Co. , 81 So. 3d 565, 566 (Fla. 4th DCA 2012). A movant is entitled to summary judgment "if the pleadings and summary judgment 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…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allenby & Assocs., Inc. v. Crown "ST. Vincent" Ltd., 8 So. 3d 1211 (Fla. 4th DCA 2009)
- Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009)
- Dwon Kimble v. State, 15 So. 3d 905 (Fla. 3d DCA 2009)
- Faythe P. Woodrum v. Wells Fargo Mortg. Bank, N.A., 73 So. 3d 873 (Fla. 4th DCA 2011)
- Colette Gray v. State, 73 So. 3d 873 (Fla. 5th DCA 2011)