Konsulian v. Bank
| Citation | 61 So.3d 1283 |
| Decision Date | 01 June 2011 |
| Docket Number | No. 2D10–2163.,2D10–2163. |
| Parties | Sarkis KONSULIAN, Appellant,v.BUSEY BANK, N.A. as Successor in interest by Acquisition of Tarpon Coast National Bank, Appellee. |
| Court | Court of Appeal of Florida (US) |
Sarkis KONSULIAN, Appellant,
v.
BUSEY BANK, N.A. as Successor in interest by Acquisition of Tarpon Coast National Bank, Appellee.
No. 2D10–2163.
District Court of Appeal of Florida, Second District.
June 1, 2011.
[61 So.3d 1284]
Gregg Horowitz, Sarasota, for Appellant.Mark A. Horowitz of Warchol, Merchant & Rollings, LLP, Cape Coral, for Appellee.BLACK, Judge.
Sarkis Konsulian appeals the trial court's order granting summary judgment in favor of Busey Bank (“Busey”). On appeal, Konsulian argues that Busey failed to meet a condition precedent to the filing of the complaint. Specifically, Konsulian asserts that Busey filed suit prematurely, giving Konsulian incomplete and inadequate notice and opportunity to cure. In addition to being prematurely filed, Konsulian claims that the acceleration letter failed to state the default as required by the mortgage terms. We agree and reverse. Because our ruling is based on the conditions precedent issue, we do not reach the issue of the accuracy of the damages calculation as challenged in Konsulian's affidavit.
On October 6, 2008, Busey sent a preacceleration letter to Konsulian. On October 9, 2008, only three days later, the bank filed a mortgage foreclosure action against Konsulian. However, pursuant to paragraph twenty-two of the mortgage, Busey was required to give Konsulian thirty days notice prior to filing suit. Paragraph twenty-two of Konsulian's mortgage provides as follows:
22. Acceleration; Remedies. Lenders shall give notice to the Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than thirty (30) days from the date the notice is given to Borrower, by which the default must be cured; and, (d) that the failure to cure the default on or before the date specified in the notice may result in an acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceedings the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, a Lender,...
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In re Sagamore Partners, Ltd., 13–20708–CIV.
...(Fla. 5th DCA 2011); Laurencio v. Deutsche Bank Nat. Trust Co., 65 So.3d 1190, 1191–92 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011). The Loan Agreement here, however, clearly does not require notice for default to occur under the instant circumst......
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...law, contracts are construed in accordance with their plain language, as bargained for by the parties." Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011) (citing Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) ). Further adages of contract interpretation d......
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In re Sagamore Partners, Ltd.
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Green Emerald Homes, LLC v. 21st Mortg. Corp.
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Chapter 12-1 Introduction
...summary judgment where the plaintiff failed to refute the affirmative defense of lack of notice); Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011).[32] Fla. R. Civ. P. 1.110(d) provides that "a party shall set forth affirmatively . . . any . . . matter constituting an ......