The Power of Affirmative Defenses: SUMMARY JUDGEMENT REVERSED!

“Here, the bank failed to refute the homeowners’ affirmative defense of lack of notice of accelerationthirty days prior to the filing of the Complaint as required by the mortgage. The letter attached to the Complaint was dated only six days prior to the filing of the Complaint. While the bank argues that section 15 of the mortgage provides that notice is deemed to have been given when mailed by first class mail, the bank failed to prove that any notice was sent by first class mail. For these reasons, we reverse and remand for further proceedings.”

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2013
JESSY KURIAN and ANIL THOMAS,
Appellants,
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Appellee.
No. 4D11-3098
[April 10, 2013]

MAY, C.J.

Homeowners appeal a final summary judgment of foreclosure. They argue the trial court erred in entering summary judgment because the bank failed to refute two of their affirmative defenses. We agree and reverse.

The homeowners executed a note and mortgage with the bank. Section 22 of the mortgage stated, in pertinent part:

Lender shall... Read More on