ARC HUD I, LLC v. Ebbert

• Decision Date: 10 March 2017
• Docket Number: Case No. 2D15–4848
• Citation: 212 So.3d 513
• Parties: ARC HUD I, LLC, Appellant, v. Donald C. EBBERT; Linda M. Ebbert; Crossroads Mobile Home Community Homeowner's Association, Inc.; Wells Fargo Bank, National Association as Successor by Merger to Crossland Mortgage Corp.; and Chris Robbins, Appellees.
• Court: Florida District Court of Appeals

212 So.3d 513

ARC HUD I, LLC, Appellant,

v.Donald C. EBBERT; Linda M. Ebbert; Crossroads Mobile Home Community Homeowner's Association, Inc.; Wells Fargo Bank, National Association as Successor by Merger to Crossland Mortgage Corp.; and Chris Robbins, Appellees.

Case No. 2D15–4848

District Court of Appeal of Florida, Second District.

Opinion filed March 10, 2017.

Nicholas R. Cavallaro of Gilbert Garcia Group, P.A., Tampa, for Appellant.

Mark P. Stopa of Stopa Law Firm, Tampa, for Appellees Donald and Linda Ebbert.

No appearance for remaining Appellees.

SLEET, Judge.

ARC HUD I, LLC,¹ challenges the trial court's order granting final summary judgment in favor of Donald and Linda Ebbert in its foreclosure action against the Ebberts. The basis for summary judgment was the Ebberts' contention that ARC HUD I failed to comply with a condition precedent required by Housing and Urban Development (HUD) regulations that applied to the Ebberts' mortgage. ARC HUD I, however, maintained below that one of the regulation's exceptions applied and that it therefore did not have to comply with the condition precedent. Because a genuine issue of material fact remained regarding whether the regulation's exception applied to ARC HUD I, we conclude that summary judgment was not proper and we reverse.

On January 21, 2007, the Ebberts executed a note and mortgage in which the lender was identified as Secured Funding Corporation. Secured Funding later endorsed the note to MVB Mortgage Corporation. On November 8, 2011, MVB filed a foreclosure complaint against the Ebberts. During the pendency of the foreclosure action, MVB assigned the note and mortgage to ARC HUD I and ARC HUD I was substituted as plaintiff.

The Ebberts subsequently filed a motion for summary judgment, arguing that "Plaintiff failed to comply with the face-to-face counseling requirements of 24 C.F.R. § 203.604." Pursuant to the statute, before instituting foreclosure proceedings on a mortgage insured by HUD, "[t]he mortgagee must have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid." 24 C.F.R. § 203.604(b) (2010).² However, the statute also provides a number of exceptions under which such a meeting would not be required, including when "[t]he mortgaged property is not within 200 miles of the mortgagee, its servicer, or a branch office of either." 24 C.F.R. § 203.604(c)(2).

To support their summary judgment motion, the Ebberts attached the affidavit of Mrs. Ebbert in which she stated, "I never participated in any face-to-face counseling with Plaintiff .... Plaintiff has no excuse to avoid this requirement ... as I reside in the property and Plaintiff has a branch within 200 miles of the property (and has had such a branch since the time of the alleged default)." In defense of the motion, ARC HUD I filed the affidavit of its agent Nakeisha Williams, who stated that "ARC HUD I, LLC and prior Plaintiff, MVB Mortgage Corp., do not have servicing centers or branch offices located within 200 miles of the subject property."

At the summary judgment hearing, counsel for the Ebberts argued that ARC HUD I's affidavit was insufficient because it stated that ARC HUD I and MVB "do not have"—present tense—branches within 200 miles of the property. The Ebberts maintained that this statement merely indicated that there were no branches within 200 miles of the property at the time the affidavit was sworn . They argued that the relevant issue was whether MVB—the servicer at the time of the default and original party plaintiff—had an office within 200 miles of the property at the time of the alleged default .

In granting the motion for summary judgment, the trial court stated:

The problem is that it says now. ... [T]he whole default and everything happened when MVB was the mortgage company. And what MVB has now doesn't matter. We need your person to go back and look at and verify and have in an affidavit that, back in the day, MVB didn't have an office within 200 miles of the subject property, because she doesn't say that.

....

But she has to say so in the affidavit. ... [I]t had to have been more than 200 miles from the subject property back at the time this was going on. Not now, because now [doesn't] matter.

....

Because it has to be at a particular—there is a particular time period on the HUD thing. They have to—it is within thirty days after such default. So we are going back to the time of the default so it is back at that time. ... If it said, do not, never did have, then I would buy it. But that is not what it says. So there is no material issue of fact.

On rehearing, ARC HUD I attached an amended affidavit from Williams, in which she stated:

Plaintiff ARC HUD I, LLC, Mortgagee[;] Secure Funding Corp.[;] and prior plaintiff, MVB Mortgage Corp. have never had any servicing centers or branch offices located within 200 miles of the subject property.

Furthermore ... Secured

...