DANIEL WHITE v. PLANET HOME LENDING, LLC
16-4317
| Fla. Dist. Ct. App. | Jan 10, 2018Background
- Daniel N. White borrowed under a mortgage that allowed acceleration on default “except as limited by regulations of the Secretary ... of Housing and Urban Development.”
- Planet Home Lending filed a foreclosure action and obtained summary judgment in the trial court.
- White pleaded an affirmative defense that the mortgage incorporated HUD regulations, including a borrower’s right to a face-to-face interview at least 30 days before foreclosure (24 C.F.R. § 203.604(b)), and denied that any such interview occurred.
- In opposition to summary judgment White submitted an affidavit stating he never attended a face-to-face interview.
- Planet initially denied that HUD regulations were incorporated but confessed error on appeal, conceding it failed to refute White’s denial and that Palma v. JPMorgan Chase Bank controls.
- The Fourth District reversed the summary judgment and remanded for further proceedings, noting that absent proof of an interview or an applicable exception, dismissal of the foreclosure complaint would be appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mortgage language incorporated HUD regulations as a condition precedent to foreclosure | White: mortgage’s "except as limited by regulations of the Secretary" incorporates HUD rules, including face-to-face interview | Planet: HUD regulations not incorporated; summary judgment valid | Court: HUD regulations are incorporated (Planet conceded under Palma); issue remains whether regulation was complied with |
| Whether Planet proved compliance with the face-to-face interview requirement | White: he never attended any face-to-face interview; raised as affirmative defense | Planet: failed to refute White’s sworn denial | Court: Planet did not refute denial; summary judgment improper |
| Whether Plaintiff met burden to obtain summary judgment over affirmative defenses | White: affirmative defenses sufficient to defeat summary judgment | Planet: argued defenses legally insufficient | Court: plaintiff must refute affirmative defenses; here it did not, so summary judgment reversed |
| Appropriate remedy if interview not shown | White: seek dismissal of foreclosure | Planet: (no evidence of interview; no response) | Court: remand for further proceedings; absent evidence of interview or exception, involuntary dismissal would be appropriate |
Key Cases Cited
- Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009) (plaintiff must refute affirmative defenses to win summary judgment)
- Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786 (Fla. 4th DCA 1995) (summary judgment standard regarding defenses)
- Palma v. JPMorgan Chase Bank, 208 So. 3d 771 (Fla. 5th DCA 2016) (mortgage language incorporating HUD regulations includes face-to-face interview requirement)
- McIntosh v. Wells Fargo Bank, N.A., 226 So. 3d 377 (Fla. 5th DCA 2017) (absence of a required face-to-face interview can warrant dismissal of foreclosure)