Goncharuk v. HSBC Mortgage Services, Inc.
62 So. 3d 680
| Fla. Dist. Ct. App. | 2011Background
- Goncharuks obtained a $223,000 mortgage loan in 2006 from The Lending Group, secured by a standard Fannie Mae/Freddie Mac Form 3010 mortgage.
- The mortgage requires the lender to provide a notice of acceleration before accelerating payment when the debtor is in default.
- In 2009, Goncharuks fell behind, and HSBC Mortgage filed foreclosure claiming the loan had been assigned to HSBC.
- Goncharuks moved to dismiss for lack of standing and failure to file a cost bond; HSBC filed a cost bond and a motion for summary judgment.
- Goncharuks did not oppose the motion initially, later withdrew the dismissal motion, and filed an answer asserting defenses including lack of notice of acceleration.
- Trial court granted summary judgment against Goncharuks; the appellate court reversed and remanded due to failure to address the notice of acceleration during summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing and assignment adequacy | Goncharuk lacked standing due to no written assignment of the loan to HSBC. | HSBC had standing through an assignment or chain of title and timely filing. | Reversed on assignment/standing issue; insufficient record to prove standing. |
| Notice of acceleration requirement | HSBC failed to address the notice of acceleration in its summary judgment papers. | HSBC did address the merits sufficiently for summary judgment. | Reversed and remanded because the notice of acceleration issue was not addressed in the summary judgment record. |
| Effect of pre-answer summary judgment burden | Plaintiff moves for summary judgment before defendant answers and must show no issue of material fact even if answer were on file. | Standard for summary judgment applies regardless of timing of answer. | Adopted Sandoro burden standard; reversal required due to unaddressed issues in record. |
Key Cases Cited
- Sandoro v. HSBC Bank, USA National Ass'n, 55 So.3d 730 (Fla. 2d DCA 2011) (summary-judgment burden when no answer on file)
- BAC Funding Consortium Inc. ASAOA/ATIMA v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010) (anticipatory burden for pre-answer summary judgment)
- Howell v. Ed Bebb, Inc., 35 So.3d 167 (Fla. 2d DCA 2010) (pre-answer summary judgment considerations)
- Brakefield v. CIT Group/Consumer Fin., Inc., 787 So.2d 115 (Fla. 2d DCA 2001) (pre-answer summary judgment burden principles)