DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
January Term 2013
JESSY KURIAN and ANIL THOMAS,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
[June 5, 2013]
On Motion for Rehearing
The bank has filed a motion for rehearing. We deny the motion for
rehearing, but withdraw our previously issued opinion and replace it
with the following.
Homeowners appeal a Final Summary Judgment of Foreclosure. They
argue the trial court erred in entering summary judgment because the
bank failed to refute their affirmative defenses. We agree and reverse.
The homeowners executed a note and mortgage with the bank.
Section 22 of the mortgage—titled “Acceleration; Remedies”—stated, in
Lender shall give notice to Borrower prior to acceleration
following Borrower’s breach of any covenant or agreement in
this Security Instrument . . . . 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 bank filed a Complaint on March 31, 2009, to foreclose the
mortgage, alleging the homeowners defaulted on December 1, 2008.
Attached to the Complaint was a letter, dated March 25, 2009, notifying
the homeowners that the mortgage was in default and the bank had
already accelerated all sums due. The homeowners answered and
asserted affirmative defenses. Affirmative Defense 14 alleged that “all
conditions precedent to filing this foreclosure action were not in
accordance with the ‘acceleration’ terms and conditions set forth in the
promissory note and mortgage.” It is this affirmative defense which we
The bank moved for summary judgment and attorneys’ fees, and filed
an Amended Affidavit as to Amounts Due and Owing. The affidavits in
support of summary judgment did not address the allegations of
Affirmative Defense 14. The homeowners filed affidavits in opposition,
which attested that they never received notification of the acceleration of
the mortgage or note, were never contacted by the bank about the
acceleration, and never waived their right to receive notice. The trial
court entered Final Summary Judgment in favor of the bank. The
homeowners now appeal.
The homeowners argue the trial court erred in entering summary
judgment because the bank failed to refute their affirmative defenses,
which were legally sufficient. More specifically, they argue that the bank
did not meet the requirements of section 22 of the mortgage by failing to
provide sufficient notice of default and opportunity to cure. The bank
responds that the affirmative defenses were legally insufficient because
they were not pled with the particularity and specificity required by
Florida Rule of Civil Procedure 1.120(c). We have de novo review. Frost
v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009).
“When a party raises affirmative defenses, ‘a summary judgment
should not be granted where there are issues of fact raised by the
affirmative defenses which have not been effectively factually challenged
and refuted.’” Alejandre v. Deutsche Bank Trust Co. Ams., 44 So. 3d
1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co.,
516 So. 2d 983, 984 (Fla. 4th DCA 1987)). The movant must disprove
the affirmative defenses or show they are legally insufficient. Id.
The bank relies on Godshalk v. Countrywide Home Loans Servicing,
L.P., 81 So. 3d 626 (Fla. 5th DCA 2012), to challenge the sufficiency of
the homeowners’ affirmative defense. In Godshalk, the court found the
affirmative defenses insufficient where the homeowner “merely denied
that ‘any of the notices required by the document’ had been sent.” Id. at
626. Here, the homeowners’ affirmative defense denied compliance with
the conditions precedent required by “the ‘acceleration’ terms and
conditions set forth in the promissory note and mortgage.” The
“acceleration” terms are located in section 22 of the mortgage, and
require notice of any default and opportunity to cure thirty days prior to
acceleration. The homeowners sufficiently pled the bank’s failure to
satisfy conditions precedent regarding the pre-acceleration notice
requirements of the mortgage. Frost, 15 So. 3d at 906 (“Although the
bank argues that the defense did not refer to any language from the
mortgage, the bank cites no authority which requires the defense to
contain such a reference.”).
At the hearing on the Motion for Summary Judgment, the bank never
argued that the homeowners’ affirmative defenses were insufficiently
pled. Rather, the bank argued that the letter attached to the Complaint,
indicating that acceleration had already occurred, satisfied the notice
requirements set forth in section 22 of the mortgage. The bank never
refuted the homeowners’ affirmative defense of lack of thirty days’ notice
of the default and opportunity to cure prior to acceleration as required by
section 22 of the mortgage.
The letter attached to the Complaint was a notice that acceleration
had already occurred and was dated only six days prior to the filing of
the Complaint. It 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.
The bank argues for the first time on appeal that section 15 of the
mortgage provides that notice is deemed to have been given when sent by
first class mail. However, the bank never established that any notice was
sent by first class mail thirty days prior to accelerating the mortgage.
For these reasons, we reverse and remand for further proceedings.
Reversed and Remanded.
TAYLOR and CONNER, JJ., concur.
* * *
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Marina Garcia-Wood, Judge; L.T. Case No. 09-18657
Scott Levine, Weston, for appellants.
Michael K. Winston and Dean A. Morande of Carlton Fields, P.A.,
West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.