U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE GSAMP TRUST 2006-NCI MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-NCI, APPELLANT,
v.
JOSE BUSQUETS AND OAKS AT WINDEMERE HOMEOWNERS ASSOCIATION, APPELLEES

Fla. 2d DCA | 2014-03-21
No. 2D13-280
NORTHCUTT and SILBERMAN, JJ., Concur.
135 So. 3d 488 Florida District Court of Appeal, Second District (2014) Positive Treatment
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

U.S. Bank appeals a trial court's summary judgment dismissing its foreclosure action against Jose Busquets for failure to provide proper notice of default and acceleration as required by the mortgage contract. The appellate court reverses, finding that the Bank's notice of default adequately complied with the mortgage's plain language requirements regarding notice of judicial foreclosure proceedings and the right to reinstate.


Holding

Yes. The Bank's notice adequately complied with both requirements. The notice satisfied the requirement to advise of judicial foreclosure because it adequately described the nature of foreclosure proceedings (including attorney's fees and right to assert defenses in court), and because in Florida, all foreclosure is necessarily judicial. The notice also satisfied the reinstatement requirement because the mortgage itself conditions reinstatement on meeting specified requirements, and the Bank's notice advised Busquets to review his mortgage terms.


Headnotes

[1] A notice of acceleration in a mortgage foreclosure action is sufficient if it advises the borrower of the possibility of foreclosure proceedings, even if it does not expl…

[2] A notice of default in a mortgage foreclosure action adequately informs a borrower of the right to reinstate the mortgage after acceleration by directing the borrower to…

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Key Quotes

“Under Florida law, contracts are construed in accordance with their plain language, as bargained for by the parties.”

Establishes the standard for interpreting the mortgage contract's notice requirements

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Facts & Procedural History

Busquets borrowed funds from New Century Mortgage Corporation in October 2005 and executed a promissory note and mortgage on his real property. The mo…

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Opinion of the Court
DAVIS, Chief Judge.

DAVIS, Chief Judge.

U.S. Bank National Association, as Trustee for the GSAMP TRUST 2006-NCI Mortgage Pass-through Certificates, Series 2006-NCI (the Bank),1 challenges the trial court’s summary final judgment entered in favor of Jose Busquets in the Bank’s foreclosure action against Bus-*489quets. In the final judgment, the trial court dismissed the foreclosure action, concluding that the Bank failed to give proper notice before accelerating the loan as required by the terms of the mortgage.2 The Bank argues that the trial court erred in finding its notice of acceleration deficient. We agree and reverse.

On October 81, 2005, Busquets borrowed funds from New Century Mortgage Corporation and executed a promissory note in favor of the lender to represent his obligation. He also executed a mortgage on his real property in favor of New Century to secure his obligations on the promissory note.3

The mortgage required that any notice of default and possible foreclosure proceedings advise “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 proceedings^] and sale of the property.”

Busquets ultimately became delinquent on his loan payments, and on November 2, 2011, the Bank, through its servicing agent, sent a notice of default to Busquets. The language of the notice provided as follows:

Failure to bring your account current may result in our election to exercise our right to foreclose on your property. Upon acceleration, your total obligation will be immediately due and payable without further demand. In foreclosure proceedings, we are entitled to collect your total arrearage in addition to any expenses of foreclosure, including but not limited to reasonable attorney’s fees and costs. If your loan has already been accelerated and foreclosure proceedings already begun, we will continue the foreclosure action (if possible). You have the right to assert in court the nonexistence of a default or any other defense to acceleration and foreclosure.

The Bank then filed its foreclosure complaint.

In response, Busquets filed a motion for summary judgment, arguing that pursuant to the terms of the mortgage contract, the notice of default was deficient in five ways. Busquets therefore maintained that the Bank had breached the mortgage agreement. Busquets argued that the foreclosure action should be dismissed due to the Bank’s failure to show that all conditions precedent had been accomplished.

The trial court granted summary judgment, finding that the Bank’s notice of default was deficient in two of the ways alleged by Busquets.4 The Bank now challenges that ruling.

On appeal, the Bank first argues that the trial court erred in finding that the notice it provided Busquets was deficient because it only advised Busquets that the holder of the note could institute foreclosure proceedings if the default was not cured, whereas the mortgage required that the notice advise of the potential of foreclosure by way of judicial proceedings. We agree.

“Under Florida law, contracts are construed in accordance with their plain lan*490guage, as bargained for by the parties.” Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011) (applying this principle to the language of a mortgage). Here, the language of the Bank’s notice meets the notice requirements set forth in the plain language of the mortgage contract. Busquets clearly was put on notice of the possibility of a foreclosure proceeding. And the trial court’s concern that the word “proceeding” was not modified by the word “judicial” is misplaced because in Florida, the only method for foreclosure is a judicial proceeding. Cf. DeSilva v. First Cmty. Bank of Am., 42 So.3d 285, 290 (Fla. 2d DCA 2010) (“ ‘[I]n order to protect a borrower’s due process rights, the courts have determined that a mortgagee can acquire possession upon a default only through judicial foreclosure.’ ” (quoting Orlando Hyatt Assocs., Ltd. v. F.D.I.C., 629 So.2d 975, 977 (Fla. 5th DCA 1993))). See generally §§ 701.02, 702.09, Fla. Stat. (2011).

Furthermore, the language of the Bank’s notice adequately describes the nature of the proceedings that Busquets might face. The notice states that in the foreclosure proceeding, the lender may collect attorney’s fees and costs in addition to the unpaid principal and interest. The notice further advises that in the foreclosure proceeding, the mortgagee has “the right to assert in court the nonexistence of a default or any other defense to acceleration and foreclosure.” Thus, the complete paragraph in the Bank’s notice adequately describes the foreclosure proceeding as a judicial proceeding, making the notice sufficient under paragraph twenty-two of the mortgage contract. It was therefore error for the trial court to hold otherwise.

The trial court also found that because the Bank’s notice only advised Bus-quets that he “may” have the right to reinstate the mortgage after acceleration, it did not comply with paragraph twenty-two’s requirement that the notice “further inform Borrower of the right to reinstate after acceleration.” We disagree.

Paragraph nineteen of the mortgage specifies Busquets’ right to reinstate after acceleration by stating that “[i]f the Borrower meets certain conditions, [the] Borrower shall have the right to have the enforcement of this Security Instrument discontinued.” The paragraph then designates the timing for exercising this right, and it continues by listing four conditions that must be met to be eligible to secure reinstatement. In other words, by the plain reading of the terms of the mortgage contract, the right to reinstatement is at best a qualified right, obtainable only after the borrower meets the specified conditions precedent. The trial court’s reading of paragraph twenty-two in isolation might suggest that the notice must advise Bus-quets of an absolute right, but such a reading is contrary to the provisions of paragraph nineteen and would, in effect, misadvise Busquets of his rights by advising him that he had an absolute right in conflict with the conditional rights provision of the mortgage contract.

Furthermore, the Bank’s notice advised Busquets to review the terms of his mortgage contract to determine the conditions under which he might be eligible for reinstatement. Therefore, the trial court erred in finding the language of the notice deficient in this regard.

Based on these two errors, we reverse the trial court’s final summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.


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Citator

Cited By

  • Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015)
    …s use of conditional “may” fails to comply because paragraph twenty-two requires that the Milams be informed “of the right to reinstatement,” which they say commands use of the word shall. Our recent decision in U.S. Bank National Ass’n v. Busquets, 135 So. 3d 488 (Fla. 2d DCA 2014), although not available to the circuit court when it ruled on the Milams’ summary judgment motion, resolves this issue against them. In Busquets, the trial court granted summary judgment to a borrower based on its determination t…
  • Lopez v. Jpmorgan Chase Bank, 187 So. 3d 343 (Fla. 4th DCA 2016)
    …onexistence of default.” (emphasis added). The lower court denied the motion and appellant appealed. The terms of a mortgage, like the terms of a contract, “are construed in accordance with their plain language.” U.S. Bank Nat’l Ass’n. v. Busquets, 135 So. 3d 488, 489 (Fla. 2d DCA 2014) (citation omitted). In contract law, when the terms of a contract state a condition precedent to suit, a party must substantially perform'with the condition precedent before being able to recover. See Ashby v. Ashby, 651 So.…
  • Fed. Nat'l Mortg. Ass'n v. Morton, 196 So. 3d 428 (Fla. 2d DCA 2016)
    …tion of substantial compliance, and there are no issues concerning the authenticity of the notice letter, we can perform that comparison on appeal as readily as a trial court could as an original matter. See, e.g., U.S. Bank Nat’l Ass’n v. Busquets, 135 So. 3d 488 (Fla. 2d DCA 2014) (examining the language of the mortgage and comparing it with the language of the notice letter to determine compliance and reversing a granted summary judgment where the trial court erroneously concluded the notice language was d…

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