ADI COHEN
v.
US BANK TRUST, N.A.
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A bank's evidence of mailing a default notice through an affidavit from a successor servicer's employee who lacks sufficient personal knowledge of the prior servicer's mailing practices is insufficient to establish the condition precedent of mailing at summary judgment.
[1] A successor servicer's employee affidavit concerning a prior servicer's mailing of a default notice is insufficient to establish compliance with a condition precedent if…
[2] Summary judgment in a residential mortgage foreclosure case is improper when material issues of fact exist regarding whether a condition precedent, such as mailing a defa…
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Join FLexlaw to unlock all legal intelligenceIn a residential mortgage foreclosure action, the bank sought summary judgment against the borrower. The bank's only evidence that a prior servicer ma…
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Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for appellee US Bank Trust, N.A., as Trustee for LSF11 Master Participation Trust.
PER CURIAM.
In this residential mortgage foreclosure case, the borrower appeals from the circuit court’s final summary judgment in the bank’s favor, and from the circuit court’s order denying the borrower’s motion for rehearing. The borrower argues the circuit court erred in entering the final summary judgment because material issues of fact existed regarding whether the bank proved a prior servicer had mailed a default notice to the borrower as a condition precedent to suit.
We agree with the borrower’s argument and reverse. Our decision in Ghani v. Deutsche Bank National Trust Co., 287 So. 3d 637 (Fla. 4th DCA 2020), is directly on point. Like the bank in Ghani, here the bank’s only evidence that the prior servicer had mailed the default notice was an affidavit executed by its successor servicer’s employee, whose affidavit did not at least facially demonstrate that the employee had sufficient personal knowledge of the prior servicer’s practices of mailing default notices to establish that the prior servicer had mailed the default notice. Thus,
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factual questions remain regarding the bank’s compliance with the condition precedent of having mailed a default notice.
Accordingly, we reverse the circuit court’s final summary judgment, and remand for further proceedings.
Reversed and remanded for further proceedings. GROSS, GERBER and KLINGENSMITH, JJ., concur.
* * * Not final until disposition of timely filed motion for rehearing.
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ADI Cohen v. US Bank Tr., N.A., 287 So. 3d 637 (Fla. 4th DCA 2021)…existed regarding whether the bank proved a prior servicer had mailed a default notice to the borrower as a condition precedent to suit. We agree with the borrower’s argument and reverse. Our decision in Ghani v. Deutsche Bank National Trust Co., 287 So. 3d 637 (Fla. 4th DCA 2020), is directly on point. Like the bank in Ghani, here the bank’s only evidence that the prior servicer had mailed the default notice was an affidavit executed by its successor servicer’s employee, whose affidavit did not at least…
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Parkin v. Eagle Home Mortg., LLC (Fla. 5th DCA 2021)…t were attached to the motion for summary judgment. These documents alone did not establish that the demand letter was mailed to Appellant. See Ghani v. Deutsche Bank Nat'l Tr. Co. as Tr. for PFCA Home Equity Inv. Tr. Certificates, Series 2002-IFC2, 287 So. 3d 637, 638 (Fla. 4th DCA 2020) (holding that bank failed to prove compliance with conditions precedent to foreclosure where the only evidence that the demand letter was mailed was the bank's affidavit accompanying the default letter and the affiant did no…
Authorities Cited
- ADI Cohen v. US Bank Tr., N.A., 287 So. 3d 637 (Fla. 4th DCA 2021)