Harper v. HSBC - FL 1st DCA - HSBC failed to establish the absence of a genuine issue of material fact by refuting one of Harper'sr affirmative defenses.

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Harper v. HSBC – FL 1st DCA – HSBC failed to establish the absence of a genuine issue of material fact by refuting one of Harper’sr affirmative defenses.

Harper v. HSBC – FL 1st DCA – HSBC failed to establish the absence of a genuine issue of material fact by refuting one of Harper’sr affirmative defenses.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

KATHLEEN HARPER,
Appellant,

v.

HSBC BANK USA, NATIONAL ASSOC. AS TRUSTEE FOR WELLS FARGO HOME EQUITY ASSET BACKED CERTIFICATES, SERIES 2005-4, ET AL.,
Appellee.

_____________________________/
Opinion filed October 23, 2014.

An appeal from the Circuit Court for Duval County.
Charles O. Mitchell, Jr., Judge.

Douglas Bradford Hughes of Lindell & Farson, P.A., Jacksonville, for Appellant.

Dean A. Morande and Michael K. Winston, and Maryellen Michelle Farrell of Carlton Fields Jorden Burt, West Palm Beach, and Suzanna M. Johnson, Tampa, for Appellee.
PER CURIAM.

In this foreclosure-related appeal, Appellant Kathleen Harper asserts that summary judgment should not have been entered against her because Appellee

HSBC Bank USA failed to establish the absence of a genuine issue of material fact and to refute one of her affirmative defenses. We agree and reverse.

In moving for summary judgment below, the Bank had the burden to show the absence of any genuine issue of material fact and to refute Ms. Harper’s legally sufficient affirmative defenses. See, e.g., Lindsey v. Wells Fargo Bank, N.A., 139 So. 3d 903, 906 (Fla. 1st DCA 2013). In this case, Ms. Harper executed a mortgage and note with the Bank that required the Bank to notify her of a default prior to accelerating her loan or foreclosing on her property; to specify how she could cure the default; and to provide at least a 30-day period to cure. Courts have recognized similar notice provisions preclude the entry of summary judgment where a bank’s complaint, motion for summary judgment, and affidavits fail to refute a defendant’s assertion of not being given the requisite notice and opportunity to cure. See, e.g., Ramos v. Citimortgage, Inc., 39 Fla. L. Weekly D1861 (Fla. 3d DCA 2014); Patel v. Aurora Loan Servs., LLC, 39 Fla. L. Weekly D840 (Fla. 4th DCA 2014); DiSalvo v. SunTrust Mortg., Inc., 115 So. 3d 438, 441 (Fla. 2d DCA 2013).

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One Response to “Harper v. HSBC – FL 1st DCA – HSBC failed to establish the absence of a genuine issue of material fact by refuting one of Harper’sr affirmative defenses.”

  1. Stupendous Man - Defender of Liberty, Foe of Tyranny says:

    Conditions precedent. FRCP 9(c). Find your state equivalent.

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