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FL 2DCA Reversal “No Written Assignment, Disputed Issue of Fact” GONCHARUK v. HSBC MORTGAGE SVS

FL 2DCA Reversal “No Written Assignment, Disputed Issue of Fact” GONCHARUK v. HSBC MORTGAGE SVS


IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

VASILIY GONCHARUK and MARINA GONCHARUK

v.

HSBC MORTGAGE SERVICES, INC.,

EXCERPT:

Vasiliy and Marina Goncharuk appeal a final judgment of foreclosure entered after the trial court granted a motion for summary judgment in favor 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).

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FL 2nd DCA Reverses SJ, “Genuine Issues of Material FACT, Purported Assignment of Mortgage” SANDORO v. HSBC BANK

FL 2nd DCA Reverses SJ, “Genuine Issues of Material FACT, Purported Assignment of Mortgage” SANDORO v. HSBC BANK


DAVID J. SANDORO, Appellant,

v.

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

Opinion filed March 9, 2011.

Appeal from the Circuit Court for Manatee
County; Edward Nicholas, Judge.

John P. Fleck, Jr., Bradenton, for Appellant.

Joshua D. Moore of Carlton Fields, P.A.,
Orlando, and Michael K. Winston and Dean
A. Morande of Carlton Fields, P.A., West
Palm Beach, for Appellee.

KHOUZAM, Judge.

Excerpt:

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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