Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT THOMAS C. BEEZLEY, III, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, SOLELY AS TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST SERIES 2004-A ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2004-A; and CITIBANK, N.A., Appellees. No. 2D20-590 March 30, 2022 Appeal from the Circuit Court for Lee County; James R. Thompson, Judge. Margaret H. White-Small of Margaret H. White-Small, Attorney at Law, Longboat Key; and Adam Stevens of Powell, Jackman, Stevens & Ricciardi, P.A., Fort Myers, for Appellant. Kimberly S. Mello of Greenberg Traurig, Orlando, and Joseph H. Picone of Greenberg Traurig, P.A., Tampa, for Appellee Deutsche Bank. No appearance for remaining Appellee. SILBERMAN, Judge. Thomas Beezley appeals the final summary judgment of foreclosure entered in favor of Deutsche Bank (the Bank). Beezley makes several arguments, only one of which requires reversal. Because the Bank did not carry its burden of factually refuting or establishing the legal insufficiency of Beezley's affirmative defense of equitable estoppel, we reverse the final summary judgment and remand for further proceedings. We do not address the other arguments made by Beezley. In January 2015, Beezley was approved for the Home Affordable Modification Agreement (HAMP) loan modification trial period plan (TPP). Based on that approval, Beezley made three TPP payments of $1,721.57 each. In March 2015, Beezley executed a permanent HAMP agreement with the Bank and continued making monthly payments of $1,721.57. In September 2015, Ocwen, the Bank's loan servicer, notified Beezley that his new monthly payment amount was $1,722.48. He began making that new monthly payment beginning in October 2015. 2 In January 2016, Beezley's online payment portal showed a balance of $1,906.34. After speaking with an Ocwen representative, Beezley allegedly was told that the amount was incorrect and that he was to pay $100.72. He made that payment and resumed making monthly payments of $1,722.48, but he then began receiving correspondence from Ocwen reflecting thousands of dollars due and owing. Although Beezley continued making monthly payments of $1,722.48, the Bank declared a default based on Beezley's failure to make monthly payments of $1,906.34. In February 2019, the Bank filed suit to foreclose its mortgage. Beezley responded and raised six affirmative defenses. Among other things, he asserted that the Bank, through its servicer, made multiple errors concerning the modification agreement, the monthly amount due on the loan, and the processing and application of his payments. He further asserted that he made the payments he was told to make based on the information provided by Ocwen's employees. The Bank denied the defenses and asserted that the defenses were legally insufficient, vague, and conclusory. The Bank filed a motion for summary judgment with supporting affidavits. Beezley filed an affidavit in opposition, setting forth facts consistent 3 with his affirmative defenses and the facts recited above. The Bank did not file an affidavit or other evidence fully refuting the facts asserted in Beezley's affirmative defenses or in his affidavit. During the hearing on the Bank's motion for summary judgment, counsel for both parties argued the factual circumstances leading to the Bank declaring a default. They addressed the amounts due each month, communications as to issues concerning the computation of those amounts, the payments Beezley made, and how the amounts paid either satisfied or failed to satisfy the payments due on the loan. The trial court expressed some confusion as to the conflicting positions of the parties but observed that even if it ruled in Beezley's favor, Beezley would not be relieved of his obligations to the Bank and the Bank could "turn around and default him the next month." Ultimately, the court granted the Bank's motion and entered final summary judgment. On appeal, Beezley argues that the trial court erred in granting summary judgment because the Bank failed to establish the absence of any genuine issue of material fact and failed to negate the affirmative defenses raised. This court reviews the granting of 4 final summary judgment of foreclosure de novo.1 See Olivera v. Bank of Am., N.A., 141 So. 3d 770, 773 (Fla. 2d DCA 2014) (citing Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1116 (Fla. 2d DCA 2011)). "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." Young v. Nationstar Mortg., LLC, 205 So. 3d 790, 792 (Fla. 2d DCA 2016) (citing Amstone v. Bank of N.Y. Mellon, 182 So. 3d 804, 806 (Fla. 2d DCA 2016)). The movant is entitled to summary judgment after irrefutably establishing that the nonmovant cannot prevail. Hervey v. Alfonso, 650 So. 2d 644, 645- 46 (Fla. 2d DCA 1995). And "it is only after the moving party has met this heavy burden that the nonmoving party is called upon to show the existence of genuine issues of material fact." Id. at 646. 1 After the final summary judgment of foreclosure was entered in this case, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510(c) to conform with the federal summary judgment standard. See In re Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192 (Fla. 2020). Because the final judgment in this case predates this amendment to rule 1.510, the amended rule does not apply. See Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020) (stating that this amendment to rule 1.510(c) is to be applied prospectively). 5 The movant seeking "[a] summary judgment must not only establish that no genuine issues of material fact exist as to the parties' claims, but it also must either factually refute the affirmative defenses or establish that they are legally insufficient." Amstone, 182 So. 3d at 806 (alteration in original) (quoting Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011)). As to Beezley's equitable estoppel affirmative defense, he argues that the Bank actively solicited him regarding loan modification programs and default servicing but was deceitful and unfair in its treatment of him. There are three elements required for an application of estoppel: "(1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon." Council Bros., Inc. v. City of Tallahassee, 634 So. 2d 264, 266 (Fla. 1st DCA 1994) (quoting State Dep't of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). Based on our review of the record, including the allegations of Beezley's equitable estoppel affirmative defense and the affidavits and exhibits, we are compelled to conclude that the Bank did not 6 carry its burden to obtain summary judgment. Beezley asserted that he entered the modification agreement and made the payments called for under the agreement; then, when issues arose as to the proper amounts to be paid, he made the payments that the Bank's representatives indicated were required to keep the loan current. While the Bank submitted affidavits and documentary evidence in support of its motion for summary judgment, those failed to refute Beezley's defense, and the Bank otherwise failed to establish that the defense was legally insufficient. We also observe that while the Bank's counsel offered her interpretation of the affidavits and documents of record, argument by counsel does not constitute evidence. Bank of N.Y. Mellon v. Peterson, 208 So. 3d 1218, 1222 (Fla. 2d DCA 2017); Justice v. State, 944 So. 2d 538, 540 (Fla. 2d DCA 2006). In summary, the record presents issues of fact as to the defense of equitable estoppel. The Bank did not conclusively refute Beezley's allegations that the Bank's agent, Ocwen, made representations as to material facts that were contrary to a later- asserted position, that Beezley relied on those representations, and that Beezley changed his position to his detriment based upon that 7 reliance. Because the Bank has failed to irrefutably establish that Beezley cannot prevail on this affirmative defense, we reverse the Final Judgment of Foreclosure and remand for further proceedings. See Hervey, 650 So. 2d at 645-46. Reversed and remanded. MORRIS, C.J., and NORTHCUTT, J., Concur. Opinion subject to revision prior to official publication. 8