2d DCA Fla: Another Bank Loses on Failure to Follow Notice Provisions in Documents


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EDITOR’S ANALYSIS: We all knew that when the appellate courts got hold of these cases, the banks’ cases would fall like dominoes. That is exactly what is happening. The reluctance with which courts had been approaching foreclosures is giving way to an examination of exactly what is provided in the actual documents and exactly what is required by law. Here the bank failed to follow the notice provisions in the documents themselves. The devil is in the details and if you persist, and make a proper record on appeal, you will see an increasing number of cases, including your own, turn the corner. Foreclosure is an extreme remedy and has always regarded as such by the courts because it deprives the homeowner of a roof over his head. Finally the courts are acting like these defenses matter. And as we all know, teh deeper they drill, the weaker the cases become.

These foreclosures should not be  in court — in fact they shouldn’t be anywhere because in most cases, the forecloser is simply an entity that is attempting to convince the court that they should have the house even if they don’t have any interest in the obligation, note or mortgage. In plain language, most of the cases that have been filed can easily be overturned by insistence that the appellate court, or even the trial court take another look and apply basic black letter law.


FL 2DCA Reverses SJ “acceleration letter failed to state the default as required by the mortgage terms”


FL 2DCA Reverses SJ “acceleration letter failed to state the default as required by the mortgage terms” | KONSULIAN v. BUSEY BANK, NA


Case No. 2D10-2163.

District Court of Appeal of Florida, Second District.

Opinion filed June 1, 2011.

Gregg Horowitz, Sarasota, for Appellant.

Mark A. Horowitz of Warchol, Merchant & Rollings, LLP, Cape Coral, for Appellee.

BLACK, Judge.

Sarkis Konsulian appeals the trial court’s order granting summary judgment in favor of Busey Bank (“Busey”). On appeal, Konsulian argues that Busey failed to meet a condition precedent to the filing of the complaint. Specifically, Konsulian asserts that Busey filed suit prematurely, giving Konsulian incomplete and inadequate notice and opportunity to cure. In addition to being prematurely filed, Konsulian claims that the acceleration letter failed to state the default as required by the mortgage terms. We agree and reverse. Because our ruling is based on the conditions precedent issue, we do not reach the issue of the accuracy of the damages calculation as challenged in Konsulian’s affidavit.

On October 6, 2008, Busey sent a preacceleration letter to Konsulian. On October 9, 2008, only three days later, the bank filed a mortgage foreclosure action against Konsulian. However, pursuant to paragraph twenty-two of the mortgage, Busey was required to give Konsulian thirty days notice prior to filing suit. Paragraph twenty-two of Konsulian’s mortgage provides as follows:

22. Acceleration; Remedies. Lenders shall give notice to the Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than thirty (30) days from the date the notice is given to Borrower, by which the default must be cured; and, (d) that the failure to cure the default on or before the date specified in the notice may result in an acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceedings the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, a Lender, at its option, may require immediate payment in full of all sums secured by this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to all attorneys’ fees and costs of title evidence.

Konsulian appropriately raised both the timeliness argument and the sufficiency of the acceleration letter argument in his affirmative defenses. In addition, Konsulian filed an affidavit in opposition to the summary judgment motion contesting the amounts claimed by Busey. Konsulian challenged the interest and late fee calculation, as well as whether all payments were credited. At the time of the summary judgment hearing, the affirmative defenses were still viable.

On April 19, 2010, the trial court entered final judgment of foreclosure, which resulted in the sale of the property to Busey. The final judgment does not address the merits or disposition of Konsulian’s defenses.

Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The standard of review for an order granting summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the nonmoving party. See Suarez v. City of Tampa, 987 So. 2d 681, 682-83 (Fla. 2d DCA 2008)Garden St. Iron & Metal, Inc. v. Tanner, 789 So. 2d 1148, 1149 (Fla. 2d DCA 2001)). “The party moving for summary judgment has the burden of showing the nonexistence of [a] genuine issue of material fact.” Richardson v. Wal-Mark Contracting Group, LLC, 814 So. 2d 534, 535 (Fla. 2d DCA 2002) (citing Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966)). 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. Moroni v. Household Fin. Corp. III, 903 So. 2d 311, 312 (Fla. 2d DCA 2005). (citing

Here, nothing in Busey’s complaint, motion for summary judgment, or affidavits indicates that Busey gave Konsulian the notice which the mortgage required. The language in the mortgage is clear and unambiguous. The word “shall” in the mortgage created conditions precedent to foreclosure, which were not satisfied. See Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009). Under Florida law, contracts are construed in accordance with their plain language, as bargained for by the parties. Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). Further, Busey did not refute Konsulian’s defenses nor did it establish that Konsulian’s defenses were legally insufficient. Because Busey did not prove that it met the conditions precedent to filing for foreclosure, it failed to meet its burden, and it is not entitled to judgment as a matter of law.

Reversed and remanded.

CASANUEVA, C.J., and WHATLEY, J., Concur.


8 Responses

  1. Appellate decision …nothing there. remand to lower cort and it gets thrown out . Taking any bets?Trust me appelate court errs. No “Bifurcation – so cloes and yet so far.

    See my comment last month…”we are out of here and headin gto the appellate court.”

    So whats with censoring me now. Its an open forum correct?



  2. FKA Thank You.

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    Zoellick has not revealed his future plans or whether he has an interest in a second term at the bank, which provides billions of dollars in loans and grants to developing countries.

    Under normal circumstances, the names of potential candidates for the World Bank would surface only months before the post becomes vacant. But the timing of the discussions is not unusual this year given the sudden opening of the top job at the bank’s sister institution, the IMF.

  3. I’ve just been concentrating mostly on Appelate cases in my current readings. There are Soooo many cases that have multiple assignment of errors…for instance The Trial court erred in granting summary judgement to Plaintiff because they lacked Jurisdiction…because they lacked standing,because they are refusing discovery,because they are not a Holder in Due Course,etc….

    Out of a laundry list of properly formed errors on Appeal, the Judges seem to pick the easy one(failure to accelerate,the T wasn’t crossed) instead of going on the record and reviewing all the assignments of error. So many of the cases were presented perfectly in State Court only to be rubber stamped…on Appeal they raise many assignments of error to be reviewed. The Appelate Judge picks the easy one( even if it were the twentieth one) reviews that one out of order first rendering all the more pertinent arguments moot.

  4. FKA – Are you suggesting there is civil procedures that would allow attorney/consumers to seek more out of their appeal in the brief and motions ? Or would more have to be done in the prior case and incorporated into the appeal? Would appreciate your sharing more details.

  5. Finally the Banks and MERS are getting squeezed on all sides…

    I am working with a producer in Hollywood on a documentary called
    “Smoke and MERS”

    Its about foreclosure Fraud, MERS, Bad Courts Decisions, Robo Signing, BS, etc?

    The Producers are looking for homeowners who want to tell their story …

    If you have a unique story please email me at uprootedone@gmail.com

  6. Awesome, awesome good news. Meanwhile we’re over at the Hill 🙂

    It’s another KingCast Mortgage Movie with Rod Class and Carl Weston!

    Be sure to watch this weekend for the actual conference they have scheduled for 10 am this morning!


  7. The Appelate Judges are taking the easy way out. We’re getting lots of “Reversed and Remanded”… But they are ingnoring the GLARING defects and issues and choosing to reverse for “lack of Acceleration” instead. Back at Trial court Plaintiff and the Judge are on the same page…”They’re just prolonging the inevitable”…send out the notice and refile for Summary Judgement…done and granted :-(.

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