Gordon B. Chiu, Appellant,
Wells Fargo Bank, N.A., successor-by-merger to Wachovia Bank, N.A., a national banking association, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 15-13427 Thomas J. Rebull, Judge.
F. Samilow, P.A., and Steven F. Samilow (Boca Raton), for
Carlton Fields Jorden Burt, P.A., and Joseph H. Lang, Jr.,
Donald R. Kirk, and Niall T. McLachlan (Tampa), for appellee.
SUAREZ, LAGOA, and LINDSEY, JJ.
Gordon Chiu ("Chiu"), appeals from a final summary
judgment entered in favor of Wells Fargo Bank, N.A.
("Wells Fargo"). We reverse.
FACTUAL AND PROCEDURAL HISTORY
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.
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.
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
STANDARD OF REVIEW
court's order entering final summary judgment is reviewed
de novo. Tropical Glass & Const. Co. v. Gitlin,