Burt v. Hudson & Keyse, LLC

• Decision Date: 23 May 2014
• Docket Number: No. 5D13–715.,5D13–715.
• Citation: 138 So.3d 1193
• Court: Florida District Court of Appeals
• Parties: Margaret BURT, Appellant, v. HUDSON & KEYSE, LLC, etc., Appellee.

138 So.3d 1193

Margaret BURT, Appellant,

v.HUDSON & KEYSE, LLC, etc., Appellee.

No. 5D13–715.

District Court of Appeal of Florida, Fifth District.

May 23, 2014.

Roberto Cruz, of Legal Advocacy Center of Central Florida, Sanford, for Appellant.

Ryan D. Gesten and David M. Vogel, of The Law Offices of Ryan D. Gesten, P.A., Davie, for Appellee.

BERGER, J.

Margaret Burt appeals a summary final judgment entered in favor of Hudson & Keyse, LLC, (H&K), an assignee of Bank of America, N.A., (BOA), for account stated and money lent and/or credit extended. Burt argues it was error to enter summary judgment when genuine issues of material fact remained as to whether Burt was the proper debtor, and whether H&K actually owned the credit card debt. We agree and reverse.

H&K filed a four count complaint against Burt for breach of contract (Count I), money lent and/or credit extended (Count II), account stated (Count III), and unjust enrichment (Count IV), naming her as Margaret Burt–Hosmer–Crist–Caudill–Brown.¹ H&K alleged that BOA assigned all of its rights, title and interest in Burt's account to H&K and that Burt was in default and had failed to cure the default by paying the unpaid balance.

Specifically, in its claim for money lent and/or credit extended, H&K alleged that Burt obtained and used a credit card from BOA to make purchases and/or obtain cash advances, that she agreed to repay the borrowed monies, and as a result owes H&K $35,192.22, the amount due, plus interest. In its claim for account stated, H&K alleged that BOA and Burt had entered business agreements, and that Burt agreed to pay and/or failed to timely dispute the resulting balance. At the hearing on its motion for summary judgment, H&K produced the following documents to support its claims for account stated and money lent and/or credit extended:

1) Affidavit of Claim generally stating that based on the entries in books kept in the regular course of business, Burt owed H&K, as assignee of BOA, $35,192.22, plus interest.

2) Statement of Account listing the debtor as Margaret Lynn Burt–Hosmer–Crist–Caudill–Brown at 12341 Hallmark Avenue, Brooksville, FL, 34613–5639, the original creditor and account number and the balance due.

3) Return of Service verifying service of H&K's complaint on Margaret Burt aka Hosmer–Crist–Caudill–Brow [sic] at address 12341 Hallmark Ave., Brooksville, FL. The Deputy Sheriff noted that Margaret Burt denied going by the names Brow or Hosmer.

4) May 13, 2006 statement from BOA for Margaret L. Hosmer, address 1805 South Stoney Brook St., Brooksville, FL 34613, showing a balance of $21,542.45; June 22, 2006 statement from BOA account in the name of Margaret L. Hosmer at the address 1805 South Stoney Brook St., Brooksville, FL 34613, showing a balance of $22,301.33.

5) Notarized Bill of Sale executed on April 30, 2008, representing sale of the BOA account of Margaret L. Hosmer, address 2944 Bamberg PL, Brooksville, FL in the amount of $35,192.22.

6) May 21, 2009 letter from H&K addressed to Margaret Burt–Hosmer–Crist Caudill–Brow at 12341 Hallmark Avenue, Brooksville, FL 34613–5639, informing her that her BOA account had been transferred to H&K and that if she did not make arrangements to satisfy the debt within ten days from the date of the letter, a lawsuit for the principal amount owed plus interest would be filed.

7) Non–Military Affidavit.

In opposition to H&K's motion, Burt filed an affidavit stating that H&K did not loan her money, did not confer on her any benefit, and that she did not owe them $35,192.22. She swore that she never received notice from H&K or its predecessors in interest that the debt had been assigned as required by section 559.715, Florida Statutes. Burt also suggested that H&K had sued the wrong Margaret Burt as another Margaret Burt also lived in Hernando County. ²

We review the entry of summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “The party moving for summary judgment is required to conclusively demonstrate the nonexistence of a material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Laughlin v. Household Bank, Ltd., 969 So.2d 509, 513 (Fla. 1st DCA 2007) (citations omitted). Summary judgment is only proper if the facts are so crystallized that nothing remains but questions of law. Id. (citing McCraney v. Barberi, 677 So.2d 355, 357 (Fla. 1st DCA 1996)). “If the evidence will permit different reasonable inferences, it should be submitted to a jury as a question of fact.” Id.

Burt has maintained throughout the litigation that the debt is not hers. And, despite her admission that she had a BOA account at one time, H&K has failed to conclusively prove that the Margaret L. Burt aka “Hosmer–Crist–Caudill–Brow [sic]” at 12341 Hallmark Avenue, Brooksville, FL, 34613, is the same person as Margaret L. Hosmer at 1805 South Stoney Brook St., Brooksville, FL 34613–5639, the debtor listed on the BOA account statements, or the Margaret L. Hosmer at 2944 Bamberg PL, Brooksville, FL 34613, the debtor listed on the “Charge Off” ledger attached to the Bill of Sale.³

As to the notice of assignment, the only evidence of notice is a copy of a letter, from H&K, addressed to “Margaret Burt–Hosmer–Crist–Caudill–Brow [sic],” regarding the assignment....