Harris v. U.S. Bank National Association, 031017 FLCA1, 1D15-2022

Docket Nº:1D15-2022
Opinion Judge:PER CURIAM.
Party Name:SARAH J. HARRIS AND BRADLEY C. HARRIS, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE LXS 2007-16N TRUST FUND, Appellee.
Attorney:Mark P. Stopa of Stopa Law Firm, Tampa, for Appellants. Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for Appellee.
Judge Panel:ROBERTS, C.J., ROWE, and MAKAR, JJ., CONCUR.
Case Date:March 10, 2017
Court:Florida Court of Appeals
 
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SARAH J. HARRIS AND BRADLEY C. HARRIS, Appellants,

v.

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE LXS 2007-16N TRUST FUND, Appellee.

No. 1D15-2022

Florida Court of Appeals, First District

March 10, 2017

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Duval County. A.C. Soud, Judge.

Mark P. Stopa of Stopa Law Firm, Tampa, for Appellants.

Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for Appellee.

PER CURIAM.

In granting final judgment on U.S. Bank National's foreclosure complaint against Sarah and Bradley Harris (whom we'll call "the Borrowers"), the trial court held that a HUD regulation was a condition precedent to foreclosure, but that the Borrowers failed to raise the issue and timely challenge the Bank's non-compliance with the regulation. We affirm.

I.

The Bank sought to foreclose a mortgage secured by a promissory note issued to the Borrowers. As an FHA loan, the note contained the following provision: If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in case of payment defaults, require immediate payment in full of the principal balance remaining due and all accrued interest. . . . In many circumstances regulations issued by the Secretary will limit Lender's rights to require immediate payment in full in the case of payment defaults. This note does not authorize acceleration when not permitted by HUD regulations.

(Emphasis added). The mortgage established the Bank's remedies upon default by the Borrowers, including limitations subject to HUD regulations: Grounds for Acceleration of Debt.

(a) Default. Lender may, except as limited by regulations issued by the Secretary, in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrument if:

(d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary 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...

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