NATIONSTAR MORTGAGE, LLC, APPELLANT,
v.
FRED CRAIG, JR. AND JANICE MINNIS-CRAIG, APPELLEES

Fla. 3d DCA | 2016-05-11
No. 3D15-568
Before WELLS, EMAS and LOGUE, JJ.
193 So. 3d 74 Florida District Court of Appeal, Third District (2016) Positive Treatment
Cited by 2 cases

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Synopsis

Nationstar Mortgage appealed a trial court's denial of its foreclosure action and entry of a money judgment instead. The appellate court reversed, holding that the default notice substantially complied with the mortgage's paragraph 22 notice requirements and that the notice was admissible as a verbal act, not hearsay.


Holding

The court held that the default notice substantially complied with paragraph 22 of the mortgage and that Nationstar was entitled to summary judgment on the foreclosure action. The court reversed the trial court's erroneous entry of a money judgment and cancellation of the note, which neither party had requested.


Headnotes

[1] A notice of default substantially complies with mortgage requirements if it informs the borrower of the default, the action required to cure it, the deadline for cure, an…

[2] A default notice is admissible as a verbal act, not for the truth of its contents, but to establish that the notice was given and triggered legal consequences.

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Key Quotes

“the undisputed evidence establishes that the default notice substantially complied with the requirements of paragraph 22 of the mortgage”

The court's holding that the notice met the mortgage's requirements despite Mr. Craig's contentions.

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Facts & Procedural History

Mr. Craig executed a $200,000 promissory note in 2007 secured by a mortgage on his property. When he defaulted in May 2008, Nationstar filed a foreclo…

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Opinion of the Court
EMAS, J.

EMAS, J.

Nationstar Mortgage, LLC appeals the final orders of the trial court which entered judgment in favor of Fred Craig, Jr. and Janiee Minnis-Craig on Nationstar’s action for foreclosure, and canceled the promissory note, .but. awarded a money judgment (without foreclosure) in favor of Nationstar. For the reasons that follow, we reverse and remand.

FACTS

Mr. Craig executed a $200,000 promissory note on April 10, 2007 in favor of Lehman Brothers Bank. Mr. and Mrs. Craig both executed the mortgage encumbering their property as security for the debt.

When Mr. Craig failed to make the May 1, 2008 payment, and all subsequent payments, Nationstar filed a one-count foreclosure complaint against Mr. and Mrs. Craig, alleging it was the holder of the note and entitled to enforce the note and mortgage. Attached to the complaint was a copy of the mortgage and a copy of the note, which was endorsed in blank.

A clerk’s default was entered against Mrs. Craig. Mr. Craig answered the complaint and asserted three affirmative defenses: (1) failure to comply with paragraph 22 of the mortgage by failing to show that the “Lender” provided the owner with a notice of default; (2) lack of standing, contesting the validity of the endorsement on the note; and (3) unclean hands because Nationstar failed to provide written notice of the loan’s assignment.

Thereafter, Nationstar moved for summary judgment. It asserted that none of Mr. Craig’s affirmative defenses prevented summary judgment. First, it alleged that Mr. Craig was provided with a notice of default in compliance with paragraph 22 and attached a copy of that notice. Second, it alleged it did have standingibecause it possessed the valid note with .a valid endorsement prior to filing thé lawsuit. Finally, it asserted that the unclean hands defense was legally insufficient and that it *76did provide the requisite notice of the assignment, which it attached to the motion.

Also attached to the motion for summary judgment was the affidavit of Edward Hyne, Nationstar’s litigation resolution analyst, who averred in relevant part that he is familiar with Nationstar’s record systems involving residential mortgage loans; that the data in the record systems is entered contemporaneously by individuals with personal knowledge of that information; that it is the regular business practice of Nationstar to create these records; and that they are maintained in the regular course of Nationstar’s business and relied upon by them to conduct their business as a loan servicer. Mr. Hyne described the history of the loan’s prior servicing by Aurora Bank, the sale of those servicing rights to Nationstar, and the boarding method utilized for incorporating Aurora’s business records into Na-tionstar’s records. Mr. Hyne also averred that, at the time suit was filed, Nationstar was the holder of the note (endorsed in blank) and mortgage. Mr. Hyne averred that the default notice was dated December 22, 2011 and was sent by first-class mail to Mr. Craig. The affidavit contained a breakdown of the amount of indebtedness for the loan and Mr. Hyne averred that the total amount due and owing was $321,011.50.

Documents attached to the affidavit (and authenticated by Hyne’s affidavit) included the note and mortgage; records showing Nationstar’s possession of the endorsed-in-blank note as of the date suit was filed; Mr. Craig’s payment history records; the December 22, 2011 default notice sent to Mr. Craig; a correspondence log; and records evidencing the total amount of indebtedness for the subject loan.

Mr. Craig also moved for summary judgment. He asserted, inter alia, that the default notice sent by Nationstar failed to comply with paragraph 22 of the mortgage 1 because it did not properly inform the owner of his rights with regard to the foreclosure proceeding — specifically, that paragraph 22 requires the notice to state that the borrower has the right to assert defenses in the foreclosure proceedings and the notice told him only that he had the right to bring a court action to assert those defenses.2,3 Mr. Craig’s motion was *77not verified and no affidavit was attached.In opposition to Mr. Craig’s motion, Na-tionstar filed a second affidavit of Edward Hyne, in which he averred that a proper notice of default was provided to Mr. Craig in compliance with paragraph 22, set forth the requisite foundation to establish the default notice was a business record of Nationstar, and attached a copy of the default notice sent to Mr. Craig.

The trial court held a hearing on both motions for summary judgment. The granted Mr. Craig’s motion for summary judgment on Nationstar’s action for foreclosure, based upon a finding that Nations-tar failed to comply with paragraph 22 of the mortgage. The trial court denied Na-tionstar’s motion for summary judgment of foreclosure, but nevertheless entered a final money judgment in favor of Nationstar for the amount of the unpaid installments dating from May 1, 2008.4 The trial court canceled the original note.

Nationstar timely moved for rehearing, which was denied by the trial court, and this appeal followed.

We review de novo the trial court’s order of final summary judgment. Volu-sia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).

ANALYSIS

The Craigs properly and commendably concede that the trial court erred in entering a final money judgment and canceling the note, relief which neither party pleaded nor requested. However, the Craigs contend that given the trial court’s determination that Nationstar failed to comply with the notice requirements of paragraph 22 of the mortgage, this court should affirm the denial of Nationstar’s motion for final summary judgment of foreclosure, and its granting of final summary judgment in favor of the Craigs.

However, the undisputed evidence establishes that the default notice substantially complied with the requirements of paragraph 22 of the mortgage. Based upon our decisions in Wells Fargo Bank, N.A. v. Hernandez & Silva Enters., Inc., No. 3D15-702, 2016 WL 2342827 (Fla. 3d DCA May 4, 2016); Bank of New York Mellon v. Mieses, No. 3D15-2042, 2016 WL 1173599 (Fla. 3d DCA March 16, 2016); SunTrust Mortg., Inc. v. Garcia, 186 So.3d 1036 (Fla. 3d DCA 2016); Bank of America v. Cadet, 183 So.3d 477 (Fla. 3d DCA 2016); and Bank of New York Mellon v. Nunez, 180 So.3d 160 (Fla. 3d DCA 2015), we hold that the trial court erred in finding that the notice at issue in this case failed to comply with paragraph 22 of the mortgage.5

Accordingly, we reverse the final judgment canceling the note and awarding a money judgment, as well as the final summary judgment in favor of the Craigs and the order denying Nationstar’s motion for summary judgment.6

*78Reversed and remanded for further proceedings consistent with this opinion.


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Citator

Cited By

  • U.S. Bank Tr., N.A. v. Wellman, 215 So. 3d 1280 (Fla. 3d DCA 2017)
    …its foreclosure lawsuit. Specifically, the trial court determined that the lender’s1 notice of default and intent to accelerate failed to comply with paragraph 22 of the mortgage agreement. Upon our de novo review, Nationstar Mortgage, LLC v. Craig, 193 So. 3d 74 (Fla. 3d DCA 2016), we find that the notice substantially complied with paragraph 22 of the mortgage. The relevant facts of the instant case are indistinguishable from those in our recent decisions in Craig, 193 So. 3d at 77; Bank of New York v. M…

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