              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT


BALBINA A. YOUNG and LAWRENCE E. )
YOUNG, SR.,                      )
                                 )
           Appellants,           )
                                 )
v.                               )                     Case No. 2D15-1023
                                 )
NATIONSTAR MORTGAGE, LLC,        )
                                 )
           Appellee.             )
                                 )

Opinion filed September 28, 2016.

Appeal from the Circuit Court for Pasco
County; Karl B. Grube, Acting Circuit
Judge.

Mark P. Stopa of Stopa Law Firm, Tampa,
for Appellants.

Nancy M. Wallace of Akerman LLP,
Tallahassee; William P. Heller of Akerman
LLP, Fort Lauderdale; and Eric M. Levine
of Akerman LLP, West Palm Beach for
Appellee.


MORRIS, Judge.

             Balbina and Lawrence Young appeal a final summary judgment of

foreclosure entered in favor of Nationstar Mortgage, LLC. We reverse because
Nationstar failed to satisfy its summary judgment burden of demonstrating that a

defense raised by the Youngs is legally insufficient.

              I. Background

              On March 11, 2013, Nationstar filed a one-count complaint for mortgage

foreclosure against the Youngs, alleging that the Youngs had executed a promissory

note in 2005 as well as a mortgage securing payment on the note. Nationstar alleged

that it was entitled to enforce the note and attached a copy of the note indorsed in

blank.1 The complaint also alleged that the Youngs had defaulted on their monthly

payments beginning in August 2012. Nationstar further alleged that "all conditions

precedent" had been met. The Youngs answered the complaint, denying that

Nationstar had complied with two conditions precedent. The Youngs alleged that

Nationstar had failed to comply with paragraph 22 of the mortgage regarding notice of

acceleration and that Nationstar had failed to comply with section 559.715, Florida

Statutes, which requires written notice of an assignment "of the right to bill and collect a

consumer debt" before an assignee may file an action to collect the debt.

              In July 2014, Nationstar filed a motion for summary judgment with a

supporting affidavit of indebtedness executed by an officer of Nationstar. The trial court

held a hearing on Nationstar's motion for summary judgment on February 2015, at

which Nationstar referenced another affidavit that had been filed with the court in May

2014, attesting that Nationstar was the holder in possession of the note at the time the

default occurred and that Nationstar had mailed a "breach letter" to the Youngs in

September 2012. Nationstar argued that summary judgment should be granted



              1In   October 2014, Nationstar filed the original note indorsed in blank.
                                              -2-
because there were no disputed material issues of fact. The Youngs responded that

the motion for summary judgment and supporting affidavits did not address the Youngs'

denials of the two conditions precedent or their other affirmative defenses. Nationstar

argued that the section 559.715 and paragraph 22 defenses had been waived because

they were not contained in the Youngs' affirmative defenses, but the Youngs responded

that they had specifically raised the defenses in their answer by denying the two

conditions precedent. At the conclusion of the hearing, the trial court ruled "that there

has been raised no material issue of law or fact that would preclude the court from

entering summary judgment at this time." Thereafter, a final judgment of foreclosure

was entered in favor of Nationstar.

              II. Analysis

              On appeal, the Youngs argue that the trial court erred in entering

summary judgment because disputed issues of material fact remained on the Youngs'

defenses, namely, that the Youngs had not received written notice of the assignment of

the debt as required by section 559.715 and that Nationstar had not given the Youngs

written notice of acceleration in compliance with paragraph 22 of the mortgage.

              Regarding the first issue, this court has recently held that section 559.715

is not "an affirmative defense to foreclosure actions[,] does not establish a condition

precedent[,] and in no other way avoids the claims to foreclose a mortgage and enforce

a note." Deutsche Bank Nat'l Trust Co. v. Hagstrom, 41 Fla. L. Weekly D1671, D1673

(Fla. 2d DCA July 20, 2016); see also Brindise v. U.S. Bank Nat'l Ass'n, 183 So. 3d

1215, 1216 (Fla 2d DCA 2016) (holding that "providing the notice described in section

559.715 is not a condition precedent to foreclosure"), rev. den., 2016 WL 1122325 (Fla.



                                            -3-
Mar. 22, 2016).2 Therefore, this defense fails as a matter of law and the Youngs are not

entitled to a reversal of the summary judgment on this basis.

              However, we find merit in the Youngs' argument that the trial court erred in

entering summary judgment because Nationstar did not meet its burden in regard to the

Youngs' paragraph 22 defense, which is a recognized defense to mortgage foreclosure.

Summary judgment should only be granted when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Amstone v. Bank of

N.Y. Mellon, 182 So. 3d 804, 806 (Fla. 2d DCA 2016). "[A] summary judgment must not

only establish that no genuine issues of fact exist as to the parties' claims, but it also

must either factually refute the affirmative defenses or establish that they are legally

insufficient." Id. (quoting Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d

DCA 2011)). "The party moving for summary judgment bears the burden of establishing

irrefutably that the nonmoving party cannot prevail." Bryson v. Branch Banking & Trust

Co., 75 So. 3d 783, 785 (Fla. 2d DCA 2011). Recently, this court reversed a summary

judgment of foreclosure where the homeowner alleged failure to comply with paragraph

22 as a defense, the bank did not specifically address or refute the defense in its motion

for summary judgment or at the summary judgment hearing, and "the affidavits

regarding the [p]aragraph 22 notice created a factual dispute that needed to be




              2This  court has also held that where the party "seeking to enforce the note
is the holder of the note and not merely the assignee of the right to bill and collect the
debt, section 559.715 is inapplicable." Bank of N.Y. Mellon v. Welker, 41 Fla. L. Weekly
D1478 (Fla. 2d DCA June 24, 2016); see also Hagstrom, 41 Fla. L. Weekly D1671 (Fla.
2d DCA July 20, 2016). Here, Nationstar alleged in its complaint that it held the note
and filed the original note indorsed in blank, but the Youngs alleged in their answer that
Nationstar did not have standing.
                                             -4-
resolved." Amstone, 182 So. 3d at 807; see also Alejandre v. Deutsche Bank Trust Co.

Ams., 44 So. 3d 1288, 1290 (Fla. 4th DCA 2010)).

              In their answer, the Youngs averred that Nationstar

              failed to give notice of the alleged default and an opportunity
              to cure, as required by paragraph 22 of the subject
              mortgage. Even if [Nationstar] sent the notice, it did not
              contain the information required, as it did not come from the
              Lender, did not specify the default, the action required to
              cure the default, that failure to cure the default would result
              in foreclosure by judicial proceeding, nor did it inform [the
              Youngs] of the right to reinstate after acceleration.

When Nationstar moved for summary judgment, it did not address its compliance with

paragraph 22 or the Youngs' defense under paragraph 22. At the summary judgment

hearing, Nationstar relied on the May 2014 affidavit alleging that a "breach letter" had

been sent to the Youngs in September 2012. The Youngs filed affidavits in opposition

to summary judgment, attesting that they had never received any notice of default from

Nationstar, but the affidavits were untimely and the Youngs do not argue on appeal that

those affidavits should have been considered. See Fla. R. Civ. P. 1.510(c) (requiring

opposing party to serve summary judgment evidence, which has not been filed with the

court, five days before the hearing or to deliver the evidence two days before the

hearing).

              While Nationstar's affidavit may have established that no genuine issue of

material fact existed regarding whether Nationstar actually sent notice to the Youngs,

this affidavit addressed only one part of the Youngs' paragraph 22 defense. The

Youngs also alleged that any notice did not comply with paragraph 22, and Nationstar

did not demonstrate in its motion for summary judgment or at the hearing on its motion

that this portion of the defense was legally insufficient. See Konsulian, 61 So. 3d at

                                            -5-
1285 (reversing summary judgment entered in favor of bank because bank "did not

refute [homeowner's] defenses nor did it establish that [homeowner's] defenses were

legally insufficient" (emphasis added)). By failing to address this portion of the Youngs'

defense, Nationstar did not meet its summary judgment burden of establishing that the

Youngs' defense was legally insufficient. Accordingly, we reverse the final judgment of

foreclosure and remand for further proceedings.3

              Reversed and remanded.




BLACK and LUCAS, JJ., Concur.




              3This   court has held that notice given under paragraph 22 must
substantially comply with paragraph 22 and that strict compliance is not required.
Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015). We do not
consider whether the letter in this case substantially complies with paragraph 22 of the
mortgage because the parties have not asked us to do so and because the trial court
has not ruled on this issue in the first instance. As stated above, Nationstar, as the
moving party, had the burden of establishing that the Youngs' defense was legally
insufficient, and it made no attempt to do so below or on appeal.
                                            -6-
