ANNIE J. THOMAS, APPELLANT,
v.
OCWEN LOAN SERVICING, LLC, APPELLEE
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A plaintiff seeking summary judgment in a foreclosure action must factually refute all affirmative defenses or demonstrate their legal insufficiency.
Ocwen Loan Servicing sought to foreclose on Annie J. Thomas's residential property. Thomas raised twenty-three affirmative defenses. The trial court g…
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The issue in this case is whether Ocwen Loan Servicing, LLC, which seeks to foreclose on the residential real property of Annie J. Thomas, is required to affirmatively refute Thomas’s affirmative defenses to be entitled to summary judgment. We hold that it must and reverse. ,
It is a well-worn principle that entitlement to summary judgment requires a plaintiff-movant to refute factually all affirmative defenses or show they are legally insufficient. See Chen v. Whitney Nat’l Bank, 65 So.Sd 1170, 1172 (Fla. 1st DCA 2011) (“The party moving for summary judgment must factually refute or disprove the affirmative defenses or establish that the defenses are insufficient as a matter of law.”). This principle applies in the context of foreclosure proceedings. See, e.g., Haber v. Deutsche Bank Nat’l Trust Co., 81 So.3d 565, 566 (Fla. 4th DCA 2012); Morroni v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d DCA 2005). Once a movant shows the absence of any genuine issues of material fact on its claims, it must go the next step and factually refute affirmative defenses or show they are legally insufficient. See Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117 (Fla. 2d DCA 2011).
Here, Thomas raised twenty-three affirmative defenses, some of which may be valid, some of which may be defeated by Ocwen as legally insufficient or factually insupportable; we simply do not know on the insufficient record presented. Accordingly, we reverse the trial court’s order of summary judgment, vacate the final judg*1247ment entered in Ocwen’s favor, and remand for further proceedings.
BENTON, C.J., and MARSTILLER, J., concur.
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Lindsey v. Wells Fargo Bank, 139 So. 3d 903 (Fla. 1st DCA 2013)…moving party is entitled to a judgment as a matter of law. Id. The party seeking summary judgment must also factually refute any affirmative defenses or establish that they are legally insufficient. Id.; see also Thomas v. Ocwen Loan Servicing, LLC, 84 So. 3d 1246 (Fla. 1st DCA 2012). “To have standing to foreclose, it must be demonstrated that the plaintiff holds the note and mortgage in question.” Mazine v. M & I Bank, 67 So. 3d 1129, 1132 (Fla. 1st DCA 2011); see also BAC Funding Consortium, Inc. v. Jean-…
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Seale v. Regions Bank, 121 So. 3d 649 (Fla. 4th DCA 2013)…closure cases, summary judgment is precluded if affirmative defenses are not factually refuted or shown to be legally insufficient. See Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So. 3d 251 (Fla. 2d DCA 2012); Thomas v. Ocwen Loan Servicing, LLC, 84 So. 3d 1246 (Fla. 1st DCA 2012); Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011); Alejandre v. Deutsche Bank Trust Co. Ams., 44 So. 3d 1288 (Fla. 4th DCA 2010); Leal v. D…
Authorities Cited
- Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115 (Fla. 2d DCA 2011)
- Morroni v. Household Fin. Corp. III, 903 So. 2d 311 (Fla. 2d DCA 2005)
- Haber v. Deutsche Bank Nat'l Tr. Co. For The Benefit Of The Certificate Holders For Argent Sec., Inc., 81 So. 3d 565 (Fla. 4th DCA 2012)