SAMAROO vs WELLS FARGO BANK, ETC., ET AL., | FL 5DCA - Para 22 - Wells Fargo contends that it “substantially” complied with the contractual notice requirements, an argument we cannot credit.

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SAMAROO vs WELLS FARGO BANK, ETC., ET AL., | FL 5DCA – Para 22 – Wells Fargo contends that it “substantially” complied with the contractual notice requirements, an argument we cannot credit.

SAMAROO vs WELLS FARGO BANK, ETC., ET AL., | FL 5DCA – Para 22 – Wells Fargo contends that it “substantially” complied with the contractual notice requirements, an argument we cannot credit.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

Case No. 5D13-1585

PAMELA SAMAROO AND JESSIE SAMAROO,
Appellants,

v.

WELLS FARGO BANK, ETC., ET AL.,
Appellees.
________________________________/
Opinion filed March 28, 2014

Appeal from the Circuit Court
for Marion County,

Victor J. Musleh, Judge.

Henry W. Hicks and Adam J. Knight,
of Henry W. Hicks, P.A., Tampa,
for Appellants.

Jeffrey S. York and N. Mark New,
of McGlinchey Stafford, Jacksonville,
for Appellees.

GRIFFIN, J.

Pamela Samaroo and Jessie Samaroo [“the Samaroos”] appeal the entry of
summary final judgment of mortgage foreclosure in favor of Wells Fargo Bank, National
Association, as Trustee for the Holders of the First Franklin Mortgage Loan Trust 2006-
FF15 Mortgage Pass-Through Certificates, Series 2006-FF15 [“Wells Fargo”]. The
Samaroos raise three issues on appeal; we find merit in only one. We agree that Wells
Fargo failed to satisfy the notice requirement of section 22 of the mortgage as a condition
precedent to foreclosure.

On April 8, 2009, Wells Fargo filed its complaint to foreclose on the Samaroos’
mortgage. Wells Fargo alleged that there had been a default under the note and
mortgage, and that all conditions precedent to the filing of the action had been performed
or had occurred. The Samaroos filed an amended answer and affirmative defenses,
asserting, among other defenses, that Wells Fargo had failed to give the Samaroos notice
of default in compliance with paragraph 22 of the mortgage.

Wells Fargo filed a motion for summary final judgment, asserting that the material
facts were not in dispute, that it had standing to foreclose the mortgage as it was the
owner and holder of the note and mortgage, and that Pamela Samaroo was in default,
had been sent a default letter, and owed amounts as identified in an attached affidavit of
indebtedness. Wells Fargo asserted that “a notice of default letter was sent to Defendant
Pamela Samaroo, in accordance with Paragraph 22 of the Mortgage, on December 17,
2008.” It ultimately argued: “Accordingly, because Plaintiff provided the notice of default
in compliance with paragraph 22 of the Mortgage, Defendants’ Tenth, Nineteenth, and
Twentieth Affirmative Defenses do not bar entry of Final Summary Judgment.”

Attached to Wells Fargo’s motion for summary final judgment are an affidavit in
support of the motion and an affidavit of indebtedness. Affiant, Deborah A. Schroeder
[“Schroeder”], represented that she was an officer at Select Portfolio Servicing, Inc.
[“SPS”], and that SPS serviced the mortgage loan for Wells Fargo. In paragraph 13 of
her affidavit, she stated:

The Loan Records reflect that on December 17, 2008, a
default letter was sent to Defendant Pamela Samaroo,
pursuant to Paragraph 22 of the Mortgage, informing her of
the default and providing the amounts due under the Note. A
copy of the acceleration/default letter is attached hereto as
Exhibit “E.”

The trial court conducted a hearing on Wells Fargo’s motion for summary final judgment
and entered summary final judgment in favor of Wells Fargo.

The Samaroos’ tenth affirmative defense asserted that Wells Fargo failed to give
notice of default that complied with the notice requirements set forth in paragraph 22 of
the mortgage. Paragraph 22 of the mortgage provides:

Acceleration; Remedies. Lender shall give notice to
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 30 days from the
date the notice is given to Borrower, by which the default
must be cured; and (d) that failure to cure the default on
or before the date specified in the notice may result in
acceleration of the sums secured by this Security
Instrument, foreclosure by judicial proceeding and sale
of the Property. The notice shall further inform Borrower
of the right to reinstate after acceleration and the right to
assert in the foreclosure proceeding 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, Lender at its option may
require immediate payment in full of all sums secured by
this Security Instrument without further demand and may
foreclose 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, reasonable attorneys’ fees
and costs of title evidence.

To refute the Samaroos’ affirmative defense that Wells Fargo failed to give the
Samaroos notice prior to acceleration that complied with the notice requirements set forth
in paragraph 22 of the mortgage, Wells Fargo relied upon the default letter that is attached
to the affidavit in support of its motion for summary judgment. However, it is apparent in
comparing the letter to the requirements of paragraph 22 that it does not comply with the
notice requirements set forth in paragraph 22 of the mortgage. Importantly, it does not
inform the Samaroos of their right to reinstate after acceleration. Rather, it informs the
Samaroos that the “acceptance of one or more payments for less than the amount
required to cure the default shall not be deemed to reinstate [their] loan or waive any
acceleration of the loan.” This in no way suggests the right to reinstate after acceleration.
See Kurian v. Wells Fargo Bank, Nat’l Ass’n, 114 So. 3d 1052, 1055 (Fla. 4th DCA 2013)
(“[The letter attached to the Complaint] did not advise of the default, provide an
opportunity to cure, or provide thirty days in which to do so. The letter attached to the
Complaint did not satisfy section 22’s requirements.”); Judy v. MSMC Venture, LLC, 100
So. 3d 1287, 1289 (Fla. 2d DCA 2012).

Wells Fargo contends that it “substantially” complied with the contractual notice
requirements, an argument we cannot credit. None of the cases cited by Wells Fargo
involved compliance with pre-acceleration notice requirements contained in a mortgage.

Its own mortgage specified the important information that it was bound to give its borrower
in default, and it simply failed to do so.1

REVERSED and REMANDED.
TORPY, C.J. and EVANDER, J., concur.

1 Wells Fargo also relies on our opinion in Godshalk v. Countrywide Home Loans
Servicing, L.P., 81 So. 3d 626, 626 (Fla. 5th DCA 2012), for the proposition that the
Samaroos’ denial of Wells Fargo’s claim that it had met all conditions precedent to
foreclosure was not sufficiently specific or particular as required by Florida Rule of Civil
Procedure 1.120(c). We reject this argument. The Samaroos specifically asserted a
failure to comply with the notice provisions of paragraph 22 of the mortgage. That
paragraph specifies only five components of the notice that the bank must give. The
failure to include the right to reinstate the mortgage after acceleration is an obvious and
crucial omission.

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