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Kimmick v. U.S. Bank National Ass'n

Florida Court of Appeal, Fourth District

January 18, 2012

Barbara KIMMICK a/k/a Barbara Waldon Kimmick, Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION, as Trustee for the GSAA Home Equity Trust 2007-7 Asset Backed Certificates, Series 2007-7; Unknown Tenant No. 1; Unknown Tenant No. 2; and All Unknown Parties Claiming Interests by, Through, Under or Against A Named Defendant to this Action, or Having or Claiming to Have Any Right, Title or Interest in the Property Herein Described, Appellees.

Page 878

Robert P. Bissonnette of Robert P. Bissonnette, P.A., Fort Lauderdale, for appellant.

Roy A. Diaz and Diana B. Matson of Smith, Hiatt & Diaz, P.A., Fort Lauderdale, for appellee U.S. Bank National Association.

HAZOURI, J.

Barbara Kimmick appeals from the granting of U.S. Bank's amended motion for summary final judgment of foreclosure and attorneys' fees, which was based upon the affidavit of indebtedness, the mortgage, and the promissory note. Kimmick asserts there were genuine issues of material fact precluding the granting of the summary judgment. We agree and reverse.

Kimmick filed an affidavit in opposition to the motion for summary judgment. She stated that she has resided at the subject property for twenty years and in February of 2009, she lost her job. She continued paying her mortgage from her savings through July of 2009. She then stated:

4. On or about August 6, 2009, I contacted my lender, Bank of America, and explained that I was experiencing financial hardship due to the loss of my job and that I had exhausted my personal savings thereafter in paying the subject note and mortgage from February 2009 to July 2009.
5. I requested assistance from Bank of America in paying my mortgage and, over the phone, Bank of America, by and through its representative, Bethany, calculated a new and reduced mortgage payment in the amount of $506.85 and that I was to start paying the new amount immediately.
6. Bank of America, by and through Bethany, further stated to me that after three (3) month's payment of the $506.85, they would review my payment history and, if I had consistently met my payment obligations, that they would grant me a permanent mortgage modification at that amount.
7. In reliance on Bank of America's representations above, I faithfully paid Bank of America the monthly sum of $506.85 for six (6) months from August 2009 through January 2010. A true copy of my Bank of American Payment Overview reflecting and evidencing the foregoing is attached hereto as Exhibit " A" .
8. Importantly, the Bank of America Payment Overview, on its face, clearly states that my six (6) months of reduced mortgage payments was for " mortgage remodification" [emphasis supplied].
9. Thereafter, on January 11, 2010, this foreclosure action was filed against me claiming that I defaulted in the subject mortgage of this action by failing to pay my mortgage payments due commencing September 1, 2009.
10. However, I could not possibly have been in default of the subject mortgage

Page 879

because, as evidenced by Exhibit " A" attached, Bank of America agreed to accept and was accepting monthly mortgage payments from me from August 2009 until January 2010— when this foreclosure action was unilaterally filed. I have also ...

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