MICHAEL SEALE AND ELAINE SEALE, APPELLANTS,
v.
REGIONS BANK D/B/A REGIONS MORTGAGE, SUCCESSOR BY MERGER TO UNION PLANTERS BANK, NATIONAL ASSOCIATION, APPELLEE
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The Fourth District Court of Appeal reversed a summary judgment foreclosure against homeowners because the trial court improperly struck their affirmative defenses without factually refuting all of them. The court held that summary judgment is precluded in mortgage foreclosure cases when legally sufficient affirmative defenses are not factually refuted.
Summary judgment was improper because the trial court struck legally sufficient affirmative defenses without factually refuting all of them. Specifically, while the standing and authority defenses were factually refuted, nothing in the record refuted the claim that the Bank failed to provide required notice of default and acceleration. Summary judgment is precluded in mortgage foreclosure cases when affirmative defenses are not factually refuted or shown to be legally insufficient.
[1] A trial court errs in striking an affirmative defense that is legally sufficient on its face and presents a bona fide issue of fact.
[2] Summary judgment in a mortgage foreclosure case is precluded if the defendant's affirmative defenses are not factually refuted or are legally insufficient.
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Join FLexlaw to unlock all legal intelligence“Where .... a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.”
Establishes the standard for striking affirmative defenses and why the trial court erred
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Join FLexlaw to unlock all legal intelligenceMichael and Elaine Seale were homeowners in a foreclosure action brought by Regions Bank. The Homeowners asserted five affirmative defenses in their a…
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Michael and Elaine Seale (the “Homeowners”) appeal the final summary judgment of foreclosure entered in favor of Regions Bank (the “Bank”). The Homeowners argue that the trial court erred in entering summary judgment when their affirmative defenses were not factually refuted or found to be legally insufficient. Because one of the legally sufficient defenses was not factually refuted, we must reverse.
*650In their answer, the Homeowners asserted five affirmative defenses, only three of which are relevant to this appeal.1 The Homeowners alleged that the Bank lacked standing, that it failed to provide the required notice of default, acceleration, and opportunity to cure,2 and that the Bank was not authorized to bring the action on behalf of the owner of the note. The defenses were struck as insufficiently pled, and on appeal, the Homeowners argue that the court erred in striking these defenses. We agree with the Homeowners that these defenses were sufficiently pled and thus erroneously struck. See Gonzalez v. NAFH Nat’l Bank, 93 So.3d 1054, 1057 (Fla. 3d DCA 2012) (‘“Where .... a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.’” (quoting Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884, 885 (Fla. 5th DCA 1979))).
Because the legally sufficient defenses were improperly struck, summary judgment was precluded if the defenses were not factually refuted. A wealth of case law makes it clear that in mortgage foreclosure 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. Deutsche Bank Nat’l Trust Co., 21 So.3d 907 (Fla. 3d DCA 2009); Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009).
The record reflects that the defenses related to standing and authority to bring suit were refuted. However, nothing in the record refuted the Homeowners’ claim that the Bank did not provide the required notice of default and acceleration. Consequently, the trial court erred in entering summary judgment.
Reversed and remanded for farther proceedings.
WARNER and CONNER, JJ., concur.
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Southwart v. The Bank OF NEW York, 204 So. 3d 134 (Fla. 4th DCA 2016)…and lack of standing. Appellant’s affirmative defenses were legally sufficient, and “[w]here ... a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.” Seale v. Regions Bank, 121 So. 3d 649, 650 (Fla. 4th DCA 2013) (quoting Gonzalez v. NAFH Nat'l Bank, 93 So. 3d 1054, 1057 (Fla. 3d DCA 2012)). We therefore reverse and remand for further proceedings consistent with this opinion. As for the remaining issues on appeal, we find them to be…
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Brier v. Deutsche Bank Nat'l Tr. Co., 237 So. 3d 401 (Fla. 4th DCA 2018)
Authorities Cited (11 total)
- Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009)
- Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115 (Fla. 2d DCA 2011)
- Alejandre v. Deutsche Bank Tr. Co. Americas, 44 So. 3d 1288 (Fla. 4th DCA 2010)
- Dwon Kimble v. State, 15 So. 3d 905 (Fla. 3d DCA 2009)
- Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884 (Fla. 5th DCA 1979)
- Sarkis Konsulian v. Busey Bank, 61 So. 3d 1283 (Fla. 2d DCA 2011)
- Liam Gillen and Jean T. Gillen v. Fed. Nat'l Mortg. Ass'n, 61 So. 3d 1283 (Fla. 5th DCA 2011)
- Gonzalez v. Deutsche Bank Nat'l Tr. Co. as Indenture Tr. for Am. Home Mortg. Inv. Tr. 2006-1, 95 So. 3d 251 (Fla. 2d DCA 2012)
- Eliezier Leal and Clara Leon v. Deutsche Bank Nat'l Tr. Co., 21 So. 3d 907 (Fla. 3d DCA 2009)
- Gonzalez v. Nafh Nat'l Bank, 93 So. 3d 1054 (Fla. 3d DCA 2012)