KATHLEEN HARPER,

Appellant,

v.

HSBC BANK USA, NATIONAL 

ASSOC. AS TRUSTEE FOR 

WELLS FARGO HOME 

EQUITY ASSET BACKED 

CERTIFICATES, SERIES 2005-

4, ET AL.,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-3403

_____________________________/

Opinion filed October 23, 2014.

An appeal from the Circuit Court for Duval County.

Charles O. Mitchell, Jr., Judge.

Douglas Bradford Hughes of Lindell & Farson, P.A., Jacksonville, for Appellant.

Dean A. Morande and Michael K. Winston, and Maryellen Michelle Farrell of 

Carlton Fields Jorden Burt, West Palm Beach, and Suzanna M. Johnson, Tampa, 

for Appellee.

PER CURIAM.

In this foreclosure-related appeal, Appellant Kathleen Harper asserts that 

summary judgment should not have been entered against her because Appellee 
HSBC Bank USA failed to establish the absence of a genuine issue of material fact

and to refute one of her affirmative defenses. We agree and reverse.

In moving for summary judgment below, the Bank had the burden to show 

the absence of any genuine issue of material fact and to refute Ms. Harper’s legally 

sufficient affirmative defenses. See, e.g., Lindsey v. Wells Fargo Bank, N.A., 139 

So. 3d 903, 906 (Fla. 1st DCA 2013). In this case, Ms. Harper executed a mortgage 

and note with the Bank that required the Bank to notify her of a default prior to 

accelerating her loan or foreclosing on her property; to specify how she could cure 

the default; and to provide at least a 30-day period to cure. Courts have recognized 

similar notice provisions preclude the entry of summary judgment where a bank’s 

complaint, motion for summary judgment, and affidavits fail to refute a 

defendant’s assertion of not being given the requisite notice and opportunity to 

cure. See, e.g., Ramos v. Citimortgage, Inc., 39 Fla. L. Weekly D1861 (Fla. 3d 

DCA 2014); Patel v. Aurora Loan Servs., LLC, 39 Fla. L. Weekly D840 (Fla. 4th 

DCA 2014); DiSalvo v. SunTrust Mortg., Inc., 115 So. 3d 438, 441 (Fla. 2d DCA 

2013).

In this case, Ms. Harper’s Answer to the Complaint “Specifically Denied” 

the bank’s allegation that it had satisfied “[a]ll conditions precedent to the 

acceleration of the Mortgage Note and foreclosure” because she had not received 

the notice of default and right to cure as called for by the parties’ agreement. Ms. 

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Harper separately asserted an affirmative defense that the Bank “failed to comply 

with the notice of default and right to cure provisions of the promissory note.”1

The Bank filed a motion for summary judgment that effectively ignored

these issues. Its motion broadly asserted that no genuine issues of material fact 

existed and that Ms. Harper’s affirmative defenses were legally insufficient to 

preclude summary judgment. The only proof offered by the Bank relative to 

whether it had complied with its notice and cure obligations prior to foreclosing 

and accelerating the debt was a letter attached to the Bank’s initial Complaint 

notifying Ms. Harper that all sums due had already been accelerated. The letter—

dated just eight days before that Complaint was filed—did not indicate that Ms. 

Harper had been provided notice, nor the cure period called for by the parties’ 

earlier agreement. And thus, the letter does not show that the Bank complied with 

1 For a few reasons, we reject the Bank’s assertion that Ms. Harper waived the 

argument raised in this appeal by not referring to “the Mortgage” in her affirmative 

defense. First, while it is true that Ms. Harper framed her affirmative defense in 

terms of the notice of default and right to cure provisions of “the promissory note,” 

the terms of the Note expressly incorporate the Mortgage as to “how and under 

what conditions [Ms. Harper] may be required to make immediate payment.” 

Because these terms of the Mortgage are incorporated into the Note, no separate 

reference to the Mortgage’s default and cure terms was needed. Second, the Bank 

failed to assert a waiver argument below in response to Ms. Harper’s Mortgagefocused arguments. Instead, it argued against rehearing on the basis that the court 

had already heard Ms. Harper’s Mortgage-related arguments at the summary 

judgment hearing and rejected them. Finally, Ms. Harper’s Answer to the 

Complaint asserted other denials on the basis that proper notice and a right to cure 

had not been provided, which precludes summary judgment because genuine issues 

of material fact still exist in this case.

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the terms of its agreement with Ms. Harper, nor refute her affirmative defense and 

other denials of the Bank’s factual allegations. See DiSalvo, 115 So. 3d at 439 

(“[A] mortgagee’s right to the security for a mortgage is dependent upon its 

compliance with the terms of the mortgage contract, and it cannot foreclose until it 

has proven compliance.”). Because the Bank did not show the absence of a genuine 

issue of material fact, nor negate Ms. Harper’s affirmative defenses regarding the 

notice and cure issues, it was error for summary judgment to be entered against 

her. See also Kurian v. Wells Fargo Bank, Nat. Ass’n, 114 So. 3d 1052 (Fla. 4th 

DCA 2013) (reversing summary judgment because the bank did not establish that 

notice and cure requirements were satisfied by attaching a letter dated six days 

before the complaint was filed, which indicated that acceleration had already 

occurred).

Accordingly, we reverse the trial court’s order of summary judgment, vacate 

the final judgment entered for the Bank, and remand for further proceedings.

REVERSED AND REMANDED.

THOMAS, RAY, and OSTERHAUS, JJ., CONCUR. 

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