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DISTRICTCOURTOF APPEALOFTHE STATE OF FLORIDAFOURTH DISTRICT
January Term 2012
OMAR HABER,Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
THE BENEFIT OF THE CERTIFICATE HOLDERS FOR ARGENTSECURITIES,
INC., ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2006-W2,
Appellee.
No. 4D10-4458
[ February 22, 2012 ]
PER CURIAM.
Omar Haber appeals the trial courts entry of a final summary
judgment of foreclosure in favor of Deutsche Bank National
TrustCompany (the bank). He argues that summary judgment was
improperbecause the bank lacked standing to file the foreclosure
suit and failed torefute his affirmative defense that the bank did
not provide him with therequisite notice and opportunity to cure
required by the mortgage
agreement. We affirm as to the standing issue without
discussion, butwe reverse the final summary judgment because the
bank failed to refute
appellants affirmative defense regarding notice and opportunity
to cure.
The mortgage agreement states, in pertinent part:
Lender shall give notice to Borrower prior to
accelerationfollowing Borrowers breach of any covenant or agreement
inthis 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
toBorrower, by which the default must be cured; and (d) that
failure to cure the default on or before the date specified
inthe notice may result in acceleration of the sums secured bythis
Security Instrument, foreclosure by judicial proceedingand sale of
the Property.www.S
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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 DCA2009) (citation omitted). In order to be entitled to
summary judgment, amortgagor must refute all of the affirmative
defenses of the mortgagee orshow 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 andopportunity to cure, it was not entitled to a final
summary judgment offoreclosure.
Affirmed in part, Reversed in part and Remanded.
TAYLOR, GERBER and LEVINE, JJ., concur.
* * *
Appeal from the Circuit Court for the Seventeenth Judicial
Circuit,Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.
09-21542CACE.
Lionel Barnet of the Law Offices of Lionel Barnet, P.A., Miami,
for
appellant.
Debra Rescigno of Robertson, Anschutz & Schneid, P.L., Boca
Raton,for appellee.
Not final until disposition of timely filed motion for
rehearing.
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