IN THE DISTRICT COURT OF APPEAL
PEDRO F. LAURENCIO; ESTEVES
PEDRO a/k/a ADELAIDA LAURENCIO;
ACCREDITED HOME LENDERS, INC.,
Successor by Merger to Aames Funding
Corporation d/b/a Aames Home Loan;
CITY OF CAPE CORAL; TENANT #1 n/k/a
ADALAEIDA LAURENCIO; and
TENANT #2 n/k/a PEDRO LAURENCIO,
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Indenture Trustee of the
Aames Mortgage Investment Trust 2005-1,
Opinion filed July 27, 2011.
Appeal from the Circuit Court for Lee
County; Hugh E. Starnes, Judge.
On December 9, 2008, Deutsche Bank’s attorneys sent Laurencio a letter stating that, pursuant to the terms of the Note and Mortgage, Deutsche Bank had “accelerated all sums due and owing, which means that the entire principal balance and all other sums recoverable under the terms of the promissory Note and Mortgage are now due.” The letter stated that the amount owed was $200,715.27. The letter also informed Laurencio: “This law firm is in the process of filing a Complaint on the promissory Note and Mortgage to foreclose on real estate.” Two days later, the bank filed a mortgage foreclosure complaint and attached this letter to the complaint.
Paragraph 22 of Laurencio’s mortgage set forth presuit requirements, including a requirement that Deutsche Bank give Laurencio thirty days’ notice and an opportunity to cure the default prior to filing suit:
Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this SecurityInstrument (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 Agreement 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.
(Underline emphasis added.) Clearly, Deutsche Bank’s letter did not comply with paragraph 22.
In this case, Deutsche Bank failed to meet its summary judgment burden because the record before the trial court reflected a genuine issue of material fact as to whether Deutsche Bank had complied with conditions precedent to filing the foreclosure action. In a case with nearly identical facts, this court recently reversed a summary judgment of foreclosure. See Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011). In Konsulian, we concluded that the bank was not entitled to summary judgment because it had not established that it had met the conditions precedent to
filing suit. Id. at 1285. The record in that case did not establish that the bank had given the defendant the notice which the mortgage required. Id. We reach the same conclusion in this case.
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