MORRISON v. U.S. BANK | FL 5DCA REVERSES Final Summary Judgment "Notice of Default as Required by Language of Mortgage"

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MORRISON v. U.S. BANK | FL 5DCA REVERSES Final Summary Judgment “Notice of Default as Required by Language of Mortgage”

MORRISON v. U.S. BANK | FL 5DCA REVERSES Final Summary Judgment “Notice of Default as Required by Language of Mortgage”

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

JULY TERM 2011

DIANNE MORRISON AND
MICHAEL HERBERT,
Appellants,

v.

US BANK, N.A., AS TRUSTEE
FOR CSAB, ETC.,
Appellee.

Case No. 5D10-556

________________________________/
Opinion filed July 29, 2011

Appeal from the Circuit Court
for Seminole County,

Alan A. Dickey, Judge.

Michael E. Rodriguez of Foreclosure
Defense Law Firm, PL, Tampa,
for Appellants.

Andrew D. Manko of Carlton Fields, P.A.,
Tallahassee, Michael K. Winston and
Dean A. Morande of Carlton Fields, P.A.,
West Palm Beach, for Appellee.

PER CURIAM.

Appellants challenge the final summary judgment in foreclosure entered in favor of Appellee. Appellants’ sole argument on appeal is that a disputed issue of material fact exists as to whether Appellee provided notice of default, as required by the language in the mortgage. Appellants denied that the notice had been provided, specifically quoting the language of the mortgage that pertained to the notice. Although Appellee attached a copy of the notice to its motion, the notice was not authenticated by affidavit or otherwise. The trial court overruled Appellants’ objection to the unauthenticated document. Appellee concedes that this was error, but nevertheless, contends that Appellants failed to raise the lack of notice in their pleading with the requisite specificity. We disagree and accordingly reverse and remand this cause for further proceedings.

REVERSED AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.

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2 Responses to “MORRISON v. U.S. BANK | FL 5DCA REVERSES Final Summary Judgment “Notice of Default as Required by Language of Mortgage””

  1. PaulR says:

    Does this ruling mean that a loan servicer has to have a Notice of Default letter notorized, and/or return-receipt-requested? They can’t just mail it?

    Can a Notice of Default in a PRIOR action — since dismissed by the Court for lack of prosecution — be used as evidence in a NEW action, or does the lender have to send out a new one?

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