REAL ESTATE MORTGAGE NETWORK, INC., APPELLANT,
v.
RICHARD KNIGHT AND JANET KNIGHT, APPELLEES
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.
REMN appealed a summary judgment dismissing its foreclosure action against the Knights, arguing the trial court erred in finding that compliance with HUD loss mitigation regulations was a mandatory condition precedent to foreclosure. The court reversed, finding disputed issues of material fact precluded summary judgment.
The court held that while non-compliance with HUD regulations may be asserted as an equitable defense in foreclosure proceedings, summary judgment was improper because REMN's sworn interrogatory answers claiming loss mitigation efforts and the Knights' affidavits denying such contact created a genuine dispute of material fact that precluded summary judgment.
[1] A mortgagor may assert non-compliance with federal regulations as an equitable defense in a mortgage foreclosure proceeding.
[2] Summary judgment is improper when there are disputed issues of material fact regarding compliance with conditions precedent to foreclosure.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This Security Instrument does not authorize . acceleration or foreclosure if not permitted by regulations of the Secretary.”
Establishes that the mortgage document itself incorporated HUD regulations as limitations on REMN's foreclosure rights
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceREMN sought to foreclose a federally insured mortgage held by Richard and Janet Knight. The mortgage document stated that REMN's foreclosure rights we…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Condition Precedent To Foreclosure cases and more on FLexlaw
Real Estate Mortgage Network, Inc. (“REMN”), mortgagee and the plaintiff below, appeals a final summary judgment in favor of mortgagors Richard and Janet Knight (“Knights”). The trial court found REMN failed to meet a condition precedent to foreclosure by failing to comply with certain federal regulations. Because there are disputed issues of fact, we reverse.
REMN sought to foreclose the Knights’ mortgage. The mortgage was federally insured and provided:
In many circumstances regulations issued by the Secretary [of Housing and Urban Development (“HUD”) ] will limit Lender’s rights in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize . acceleration or foreclosure if not permitted by regulations of the Secretary.
As an affirmative defense, the Knights alleged that REMN had failed to comply with certain HUD regulations, which the Knights argued were conditions precedent to foreclosure. Those regulations require lenders to make certain loss mitigation efforts prior to initiating foreclosure. The Knights moved for summary judgment and attached an affidavit stating that REMN had not engaged in any loss mitigation and had never contacted them with respect to any mortgage modification. REMN filed copies of sworn interrogatory answers alleging their compliance with the loss mitigation requirements of 24 C.F.R. § 203.605, including sending various documents to the Knights. The court granted summary judgment finding that the action was premature, because REMN had not fulfilled a condition precedent to foreclosure.
REMN argues on appeal that the court erred in applying the HUD regulations ' and finding that they were a mandatory condition precedent. We have held that non-compliance with HUD regulations may be asserted as an equitable defense in mortgage foreclosure proceedings. Cross v. Fed. Nat’l Mortg. Ass’n, 359 So.2d 464, 465 (Fla. 4th DCA 1978).
REMN is entitled to reversal, however, because its sworn interrogatories stating that loss mitigation efforts had been made and the Knights’ affidavits stating that they had never heard from the bank reveal a disputed issue of material fact. Therefore, summary judgment dismissing the foreclosure was error. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (summary judgment is proper only if the record shows no genuine issue of material fact).
Reversed and remanded for further proceedings.
STEVENSON and GERBER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Laws v. Wells Fargo Bank, N.A., 159 So. 3d 918 (Fla. 1st DCA 2015)…fically and expressly incorporating HUD regulations that require a written notice of acceleration, Laws was entitled to raise failure to comply'with these regulations as a valid defense to foreclosure. See Real Estate Mortg. Network, Inc. v. Knight, 149 So. 3d 121 (Fla. 4th DCA 2014) (holding that a valid defense of noncompliance with HUD regulations that require a notice of acceleration existed, where the subject mortgage expressly provided that it “does not authorize acceleration or foreclosure if not permi…
Authorities Cited
- Volusia Cnty. v. Aberdeen AT Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)
- Cross v. Fed. Nat'l Mortg. Ass'n, 359 So. 2d 464 (Fla. 4th DCA 1978)