GOOD v. DEUTSCHE BANK NATIONAL TRUST COMPANY 2006 OPT5 2006 OPT5 (2012)

Harvey Good and Monica Cornejo appeal a summary final judgment of foreclosure rendered against them. The issue on appeal is whether the trial court erred in granting summary final judgment because Deutsche Bank National Trust Company (“Deutsche Bank”) failed to negate Appellants' affirmative defenses. We conclude that Appellants established a genuine issue of material fact regarding their affirmative defenses, and therefore, summary judgment was improper. We reverse.

Deutsche Bank filed its mortgage foreclosure complaint against Appellants. Appellants filed an answer and three affirmative defenses: (i) recoupment for violation of the Federal Real Estate Settlement Procedures Act (RESPA);¹ (ii) unclean hands based on the RESPA violation; and (iii) violation of Florida's Deceptive and Unfair Trade Practices Act (“FDUTPA”).² Appellants sought to dismiss the mortgage foreclosure complaint, or in the alternative, reduce the amount that they owed by the amount of damages available under RESPA.

Deutsche Bank moved to strike the affirmative defenses. The trial court declined to strike the first two affirmative defenses. However, it struck the third affirmative defense based on a FDUPTA violation with leave for Appellants to file a counterclaim. Appellants chose not to pursue the counterclaim under FDUTPA.

Deutsche Bank filed a motion for summary judgment with a supporting affidavit. The affidavit controverted Appellants' RESPA affirmative defense by asserting that Appellants failed to allege with specificity and particularity the violations as required by Florida Rules of Civil Procedure. Furthermore, the statutes cited by Appellants regulated servicers of loans, and Deutsche Bank was not the servicer. As for the unclean hands affirmative defense, the affiant claimed that Deutsche Bank did not act with unclean hands, and Appellants did not allege any specific intentional acts or other conduct to suggest a scheme or fraud to constitute unclean hands. In response, Appellants filed the affidavit of Appellant Harvey Good, stating that Option One paid a yield spread premium to Guardian Financial Network in the amount of $8,400 even though they paid Guardian a broker's fee of $5,600.

According to Deutsche Bank, Appellants also failed to allege any facts supporting the allegation of intentionally misleading, and reckless conduct and unfulfilled conditions. The affidavit concluded by stating that Appellants were in default on the mortgage and note, listing the total balance due ($773,084.39), and all of the conditions precedent had been performed. Appellants filed an affidavit in response to the summary judgment motion, which readdressed the same arguments set forth in their affirmative defenses with respect to the RESPA violation. The trial court granted final summary judgment of foreclosure.³ This appeal follows.

An order granting summary judgment is reviewed de novo. Coleman v. Grandma's Place, Inc., 63 So.3d 929, 932 (Fla. 4th DCA 2011). “In order to be entitled to summary judgment as a matter of law, the party seeking summary judgment must not only establish that no genuine issues of material fact exist as to the party's claims but must also either factually refute the affirmative defenses or establish that they are legally insufficient.” Jones v. State ex rel. City of Winter Haven, 870 So.2d 52, 55 (Fla. 2d DCA 2003) (citations omitted).

We are compelled to reverse the final summary judgment because Harvey Good's affidavit created disputed issues of material fact in connection with whether the payment of a yield spread premium constituted a kickback/referral fee in violation of RESPA. See Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288, 1289 (Fla. 4th DCA 2010) (reversing a final summary judgment of foreclosure because issues of fact remained as to homeowner's affirmative defenses, which included a RESPA defense). We find no error in the trial court's granting of summary judgment on the remaining affirmative defenses. On remand, the trial court shall be limited to a determination of whether there was a RESPA violation, and if so, the amount that shall be set-off from the amount due on the mortgage.

Reversed and Remanded.

FOOTNOTES

1.  12 U.S.C. §§ 2601–2617 (2006).

2.  §§ 501.201–.213, Fla. Stat. (2007).

3.  After the entry of the final judgment Appellants moved for rehearing and sought to set aside the final judgment. Both motions essentially reiterated the arguments made in opposition to the motion for summary judgment.

DAMOORGIAN, J.

WARNER and POLEN, JJ., concur.