Frost v. Regions Bank

• Decision Date: 05 August 2009
• Docket Number: No. 4D08-3168.,4D08-3168.
• Citation: 15 So.3d 905
• Parties: Sherry A. FROST and Jerry Frost, Appellants, v. REGIONS BANK, successor by merger to Union Planters Bank, N.A., successor by merger with Union Planters Mortgage, Inc., Appellee.
• Court: Florida District Court of Appeals

15 So.3d 905

Sherry A. FROST and Jerry Frost, Appellants, v. REGIONS BANK, successor by merger to Union Planters Bank, N.A., successor by merger with Union Planters Mortgage, Inc., Appellee.

No. 4D08-3168.

District Court of Appeal of Florida, Fourth District.

August 5, 2009.

Ronald E. D'Anna of McClosky, D'Anna & Dieterle, LLP, Boca Raton, for appellants.

Les C. Shields of Ben-Ezra & Katz, P.A., Fort Lauderdale, for appellee.

GERBER, J.

The circuit court entered a final summary judgment of foreclosure against the defendants below, Sherry and Jerry Frost. The Frosts appeal, arguing the plaintiff, Regions Bank, did not negate the Frosts' affirmative defense that the bank did not provide notice of the alleged default and a reasonable opportunity to cure. We agree and reverse.

The bank filed a mortgage foreclosure action against the Frosts. The Frosts' answer asserted, among other defenses, that the bank failed to satisfy the condition precedent of providing notice of the alleged default and a reasonable opportunity to cure. For that defense, the Frosts did not refer to any language from the mortgage. However, the bank attached the mortgage to its complaint, and the mortgage states, in pertinent part:

Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument ... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

The bank filed a motion for summary judgment, along with an affidavit of indebtedness, an attorney's fee affidavit, and the original note. The Frosts did not file any papers or affidavits in opposition to the motion. Instead, at the hearing on the motion, the Frosts argued that the bank failed to address their affirmative defenses. The circuit court discussed with the parties some of the defenses, but not the lack of notice and opportunity to cure defense. The circuit court then granted the bank's motion for summary judgment and entered a written final judgment of foreclosure. This appeal followed.

The standard of review of an order granting summary judgment is de novo. Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009) (citation omitted). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Id....