Haber v. Deutsche Bank National Trust Co.

District Court of Appeal of Florida

Haber v. Deutsche Bank National Trust Co.

81 So. 3d 565, 2012 WL 555484, 2012 Fla. App. LEXIS 2661

CourtDistrict Court of Appeal of Florida

DecidedFebruary 22, 2012

DocketNo. 4D10-4458

StatusPublished

Cited by5 cases

This text of 81 So. 3d 565 (Haber v. Deutsche Bank National Trust Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Haber v. Deutsche Bank National Trust Co., 81 So. 3d 565, 2012 WL 555484, 2012 Fla. App. LEXIS 2661 (Fla. Ct. App. 2012).

Pincite

Opinion

PER CURIAM.

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:

[566]*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.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

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:

[566]*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.

Cite This Page — Counsel Stack

Bluebook (online)

81 So. 3d 565, 2012 WL 555484, 2012 Fla. App. LEXIS 2661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haber-v-deutsche-bank-national-trust-co-fladistctapp-2012.

Opinion

Related

Cite This Page — Counsel Stack