Disalvo v. Suntrust Mortg., Inc.

• Decision Date: 19 June 2013
• Docket Number: No. 2D11–2707.,2D11–2707.
• Citation: 115 So.3d 438
• Parties: Joe DiSALVO, III, and Elizabeth Ann DiSalvo, Appellants, v. SUNTRUST MORTGAGE, INC., Appellee.
• Court: Florida District Court of Appeals

115 So.3d 438

Joe DiSALVO, III, and Elizabeth Ann DiSalvo, Appellants,

v.SUNTRUST MORTGAGE, INC., Appellee.

No. 2D11–2707.

District Court of Appeal of Florida, Second District.

June 19, 2013.

Michael E. Rodriguez of Foreclosure Defense Law Firm, PL, Tampa, for Appellants.

Tricia J. Duthiers and Frank P. Cuneo of Liebler, Gonzalez & Portuondo, P.A., Miami, for Appellee.

WALLACE, Judge.

Joe DiSalvo, III, and Elizabeth Ann DiSalvo challenge the entry of a summary judgment resulting in a final judgment of foreclosure.Because the mortgagee, SunTrust Mortgage, Inc., failed to present competent evidence that it provided the DiSalvos with the requisite notice and an opportunity to cure the default before the acceleration of the mortgage debt, we reverse.

In July 2009, SunTrust filed a complaint seeking to foreclose a mortgage made by the DiSalvos.Paragraph 9 of the complaint contained a general allegation that all of the conditions precedent to the acceleration of the mortgage had been performed.Soon after, SunTrust filed a motion for final summary judgment of foreclosure.

In their answer, the DiSalvos denied paragraph 9 of the complaint.The answer recited the terms of the mortgage contract contained in Section 22, which provided that the lender was required to give notice to the borrower before acceleration and that the notice must specify the default, the action required to cure the default, and a date final for cure of the default.The notice must also inform the borrower that the failure to cure the default before the specified date could result in acceleration or foreclosure.In addition, Section 22 provided that the notice must inform the borrower of the right to reinstate the mortgage after acceleration and the right to assert the nonexistence of default or any other defense in a subsequent foreclosure proceeding.The DiSalvos denied that they had received the required notice and alleged that SunTrust had not complied with any of the conditions precedent expressed in Section 22 of the mortgage.The DiSalvos' affirmative defense # 5 contained essentially the same language as the denial paragraph in their answer.

In January 2010, SunTrust filed a copy of a default letter with the trial court and simultaneously moved to strike the DiSalvos' affirmative defenses.With regard to the DiSalvos' fifth affirmative defense, SunTrust's motion alleged:

Defendant was served with this complaint on July 24, 2009.Plaintiff served its notice of the default and the amount owed under the subject note and mortgage more than 30 days from the date the complaint was served as evidenced by a copy of the letter filed under separate cover.

On November 30, 2010, the trial court granted SunTrust's motion to strike the DiSalvos' affirmative defenses without a hearing.In April 2011, the DiSalvos moved for leave to file an amended answer and affirmative defenses, but the motion was never set for a hearing.On May 12, 2011, the trial court held a hearing on SunTrust's motion for summary judgment.After the hearing, the trial court granted SunTrust's motion for summary judgment and subsequently entered a final judgment of foreclosure.

We conclude that the trial court erred in granting summary judgment and in entering a final judgment of foreclosure for two reasons.First, a mortgagee's right to the security for a mortgage is dependent upon its compliance with the terms of the mortgage contract, and it cannot foreclose until it has proven compliance.SeeF.A. Chastain Constr., Inc. v. Pratt,146 So.2d 910, 913(Fla. 3d DCA1962).But the filing of a copy of the default notice by SunTrust, without proper authentication, failed to prove such compliance:

The unauthenticated copies of default letters purportedly sent to Bryson by BB & T were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on a motion for summary judgment.

... In this case, the letters at issue were not admitted by the pleadings, nor were they accompanied by an affidavit of a record custodian or other proper person attesting to their authenticity or correctness.

Bryson v. Branch Banking & Trust Co.,75 So.3d 783, 786(Fla. 2d DCA2011)(citations omitted);see alsoFinnegan v. Deutsche Bank Nat'l Trust Co.,96 So.3d 1093, 1094(Fla. 4th DCA2012)(“While the bank filed copies of letters allegedly sent to her, these were not sworn and could not be considered on a motion for summary judgment.”);Morrison v. U.S. Bank, N.A.,66 So.3d 387, 387(Fla. 5th DCA2011)(holding that the bank's filing of an unauthenticatednotice letter failed to support summary judgment where the defendant asserted she had not received a notice of default);Bifulco v. State Farm Mut. Auto. Ins. Co.,693 So.2d 707, 709(Fla. 4th DCA1997)(“Merely attaching documents which are not ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).”).In this case, at the hearing on its motion for summary judgment, SunTrust argued that the notice it had filed was sufficient and “meets its burden as far as Paragraph 22”(referring to section 22 of the mortgage contract)...