In an opinion issued yesterday in Chester A. Brooks, et al. v. Bank of America, et al., Case No. 4D14-3337 (Fla. 4th DCA May 25, 2016), Florida’s Fourth District Court of Appeal made clear that, in order to obtain summary judgment of foreclosure, a lender must prove facts to refute a defense of failure to provide notice of default and opportunity to cure.
In Brooks, the trial court granted summary judgment of foreclosure, even though the borrowers had asserted a legally sufficient affirmative defense of failure to comply with the requirements of paragraph 22 of the mortgage, which required notice of intent to accelerate and an opportunity to cure. However, because the lender had failed to establish by summary judgment evidence that it had sent the required notice, the appellate court reversed the final judgment.
Brooks should serve as a reminder to lenders that they must submit correspondence that satisfies any notice requirement or state in an affidavit that any required notice was provided. Failure to do so leaves a disputed issue of material fact and precludes entry of summary judgment.
When a borrower asserts an affirmative defense of failure to satisfy the condition precedent of providing notice and an opportunity to cure, a lender seeking summary judgment of foreclosure must remember to “Say it Ain’t So” …
David Greene is a commercial litigation partner in Fox Rothschild’s West Palm Beach office. His practice focuses primarily on banking litigation, real estate litigation, title insurance litigation, and construction litigation. You can reach David at 561-804-4441 or email@example.com.