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Chiu v. Wells Fargo Bank, N.A.

Florida Court of Appeals, Third District

March 28, 2018

Gordon B. Chiu, Appellant,
v.
Wells Fargo Bank, N.A., successor-by-merger to Wachovia Bank, N.A., a national banking association, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 15-13427 Thomas J. Rebull, Judge.

          Steven F. Samilow, P.A., and Steven F. Samilow (Boca Raton), for appellant.

          Carlton Fields Jorden Burt, P.A., and Joseph H. Lang, Jr., Donald R. Kirk, and Niall T. McLachlan (Tampa), for appellee.

          Before SUAREZ, LAGOA, and LINDSEY, JJ.

          LAGOA, J.

         Appellant, Gordon Chiu ("Chiu"), appeals from a final summary judgment entered in favor of Wells Fargo Bank, N.A. ("Wells Fargo"). We reverse.

         I. FACTUAL AND PROCEDURAL HISTORY

         In September 2005, Appellant, Gordon Chiu ("Chiu"), and his friend, Colin Green ("Green"), purchased an investment property in Port St. Lucie, Florida. To finance the purchase, Chiu and Green signed a promissory note in the amount of $504, 985.97 in favor of Wachovia Bank, N.A. Chiu and Green were jointly and severally obligated under the terms of the note. The loan fell into arrears, and on June 15, 2015, Wells Fargo, successor-by-merger to Wachovia Bank, N.A., filed a complaint against Chiu for breach of the promissory note. On September 1, 2016, Chiu filed his consolidated answer and second amended affirmative defenses. Chiu asserted numerous affirmative defenses, including estoppel, unclean hands, statute of limitations, laches, unconscionability, fraud in the inducement, negligent misrepresentation, that the extension of the due dates under the note was void or voidable, failure to mitigate damages by failing to pursue the foreclosure action, misconduct in connection with the presentation of Green's creditworthiness and finances, failure to state a cause of action, and breach of fiduciary duty.

         On December 7, 2016, Wells Fargo filed its motion for summary judgment, arguing that it was entitled to judgment in its favor as a matter of law and that none of Chiu's affirmative defenses raised a genuine issue of material fact. Wells Fargo filed an affidavit of amounts due and owing on March 1, 2017. Chiu filed a memorandum and amended memorandum in opposition to the motion for summary judgment on March 27, 2017. Chiu also filed affidavits in support of his memorandum on March 25, 2017 and March 27, 2017.

         The parties agree that a hearing on Wells Fargo's motion for summary judgment was set for April 3, 2017. On March 31, 2017, however, the trial court, on its own initiative, entered an order cancelling the hearing set for April 3 and granting Wells Fargo's motion for final summary judgment. In its order, the trial court stated that it had reviewed Wells Fargo's motion and supporting materials as well as Chiu's memorandum in opposition to the motion and materials in opposition. The trial court entered final judgment in favor of Wells Fargo on April 5, 2017. Chiu's appeal ensued.

         II. STANDARD OF REVIEW

         A trial court's order entering final summary judgment is reviewed de novo. Tropical Glass & Const. Co. v. Gitlin, ...


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