Shahar v. Green Tree Servicing LLC
125 So. 3d 251
Fla. Dist. Ct. App.2013Background
- Homeowners sought refinancing of two ARMs; lender allegedly altered income information and switched to a stated-income loan without Homeowners’ knowledge.
- Lender allegedly destroyed Homeowners’ income/assets documents and presented an altered loan application at closing without disclosing changes.
- Homeowners signed the altered application under lender pressure to cover refinance fees, believing information was consistent with their verbal interview and originals.
- Homeowners allege payments increased by about 50% due to the scheme, forming the basis for their unclean hands defense.
- Green Tree’s summary-judgment evidence consisted of a VP affidavit stating note ownership and nonpayment, plus a vague Letter; Green Tree did not address unclean hands in the briefing, and the court granted summary judgment in part.
- The court reversed the foreclosure portion of the summary judgment but affirmed the counterclaims portion, remanding for further proceedings; dissent argued the unclean hands defense lacked injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unclean hands defeats foreclosure | Green Tree contends unclean hands lacks injury and is legally insufficient | Homeowners contend unclean hands were adequately pled by facts of deception and misrepresentation | Foreclosure reversed on unclean hands; defense viable; remand for merits |
| Whether absence of transcripts affects review | Green Tree argues lack of transcripts blocks appellate review | Homeowners contend transcripts are not required for summary-judgment review | Appellate review allowed without transcripts; not necessary to have summary-judgment hearing record |
Key Cases Cited
- Ocean View Towers, Inc. v. First Fid. Sav. & Loan Ass’n, 521 So.2d 325 (Fla. 4th DCA 1988) (unclean hands concept and equity principles)
- Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So.3d 602 (Fla. 4th DCA 2013) (unclean hands defense in foreclosures evaluated for sufficiency)
- Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 883 (Fla. 4th DCA 2009) (unclean hands may be pled as affirmative defense)
- Monetary Funding Grp., Inc. v. Pluchino, 867 A.2d 841 (Conn.App. 2005) (unsophisticated borrower misled about terms; unclean hands precluded foreclosure)
- Landers v. Milton, 370 So.2d 368 (Fla.1979) (burden on opposing party to create genuine issue after competent evidence; injury requirement for unclean hands)
- Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288 (Fla. 4th DCA 2010) (burden on movant to show lacking defense; rebuttal required)
- Fischer v. Bernard’s Surf, 217 So.2d 576 (Fla. 4th DCA 1969) (caution in granting summary judgment; cannot rely on chance of success)
- Romero v. All Claims Ins. Repairs, Inc., 698 So.2d 605 (Fla. 3d DCA 1997) (summary-judgment record necessary portions described)