Laurencio v. Deutsche Bank Nat'l Trust Co., No. 2D10–2448.

CourtCourt of Appeal of Florida (US)
Writing for the CourtVILLANTI, Judge.
Citation65 So.3d 1190
Decision Date27 July 2011
Docket NumberNo. 2D10–2448.
PartiesPedro F. LAURENCIO; Esteves Pedro a/k/a Adelaida Laurencio; Accredited Home Lenders, Inc., Successor by Merger to Aames Funding Corporation d/b/a Aames Home Loan; City of Cape Coral; Tenant # 1 n/k/a Adalaeida Laurencio; and Tenant # 2 n/k/a Pedro Laurencio, Appellants,v.DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee of the Aames Mortgage Investment Trust 2005–1, Appellee.

65 So.3d 1190

Pedro F. LAURENCIO; Esteves Pedro a/k/a Adelaida Laurencio; Accredited Home Lenders, Inc., Successor by Merger to Aames Funding Corporation d/b/a Aames Home Loan; City of Cape Coral; Tenant # 1 n/k/a Adalaeida Laurencio; and Tenant # 2 n/k/a Pedro Laurencio, Appellants,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee of the Aames Mortgage Investment Trust 2005–1, Appellee.

No. 2D10–2448.

District Court of Appeal of Florida, Second District.

July 27, 2011.


[65 So.3d 1190]

Jon B. Lindeman, Jr., Carlos M. Ferreyros, Carlos D. Grande, and Jennifer N. Hernandez of Advocate Law Groups of

[65 So.3d 1191]

Florida, P.A., Miami Lakes, for Appellants Pedro F. Laurencio and Esteves Pedro.No appearance for remaining Appellants.James John Spanolio and Erin M. Berger of Florida Default Law Group, P.L., Tampa, for Appellee.VILLANTI, Judge.

In this mortgage foreclosure action, Pedro F. Laurencio and Esteves Pedro 1 appeal the trial court's order granting summary judgment in favor of Deutsche Bank National Trust Company. Laurencio argues, among several things,2 that Deutsche Bank failed to meet a condition precedent to filing the complaint and filed suit prematurely, without giving them adequate notice and an opportunity to cure the alleged default. Laurencio also argues that the trial court erred in denying the motion to amend the answer and affirmative defenses. We agree on both issues and reverse.

On December 9, 2008, Deutsche Bank's attorneys sent Laurencio a letter stating that, pursuant to the terms of the Note and Mortgage, Deutsche Bank had “accelerated all sums due and owing, which means that the entire principal balance and all other sums recoverable under the terms of the promissory Note and Mortgage are now due.” The letter stated that the amount owed was $200,715.27. The letter also informed Laurencio: “This law firm is in the process of filing a Complaint on the promissory Note and Mortgage to foreclose on real estate.” Two days later, the bank filed a mortgage foreclosure complaint and attached this letter to the complaint.

Paragraph 22 of Laurencio's mortgage set forth presuit requirements, including a requirement that Deutsche Bank give Laurencio thirty days' notice and an opportunity to cure the default prior to filing suit:

Acceleration; Remedies. Lender shall give notice to 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 3 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 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 notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding 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, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Agreement by judicial proceeding. Lender...

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22 practice notes
  • In re Sagamore Partners, Ltd., No. 13–20708–CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 26, 2014
    ...2012); Wroblewski v. Am. Home Mortg. Servicing, Inc., 68 So.3d 431, 431 (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......
  • In re Sagamore Partners, Ltd., Case No. 13-20708-CIV-ROSENBAUM
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 26, 2014
    ...2012); Wroblewski v. Am. Home Mortg. Servicing, Inc., 68 So. 3d 431, 431 (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, clea......
  • Green Tree Servicing, LLC v. Milam, No. 2D14–660.
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 2015
    ...demonstrates the absence of any genuine issue of material fact, a matter we review de novo. Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So.3d 1190, 1192 (Fla. 2d DCA 2011). The notice requirement of paragraph twenty-two, a standard mortgage provision, is a condition precedent to be satis......
  • Reyes v. Roush, No. 2D11–4490.
    • United States
    • Court of Appeal of Florida (US)
    • October 17, 2012
    ...to amend. See Moore v. Liberty Mut. Ins. Co., 988 So.2d 1285 (Fla. 2d DCA 2008); see also Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So.3d 1190 (Fla. 2d DCA 2011). Ultimately, it may be established that amendment will be futile. But at this stage of the proceeding, public policy favors ......
  • Request a trial to view additional results
22 cases
  • In re Sagamore Partners, Ltd., No. 13–20708–CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 26, 2014
    ...2012); Wroblewski v. Am. Home Mortg. Servicing, Inc., 68 So.3d 431, 431 (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......
  • In re Sagamore Partners, Ltd., Case No. 13-20708-CIV-ROSENBAUM
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 26, 2014
    ...2012); Wroblewski v. Am. Home Mortg. Servicing, Inc., 68 So. 3d 431, 431 (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, clea......
  • Green Tree Servicing, LLC v. Milam, No. 2D14–660.
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 2015
    ...demonstrates the absence of any genuine issue of material fact, a matter we review de novo. Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So.3d 1190, 1192 (Fla. 2d DCA 2011). The notice requirement of paragraph twenty-two, a standard mortgage provision, is a condition precedent to be satis......
  • Reyes v. Roush, No. 2D11–4490.
    • United States
    • Court of Appeal of Florida (US)
    • October 17, 2012
    ...to amend. See Moore v. Liberty Mut. Ins. Co., 988 So.2d 1285 (Fla. 2d DCA 2008); see also Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So.3d 1190 (Fla. 2d DCA 2011). Ultimately, it may be established that amendment will be futile. But at this stage of the proceeding, public policy favors ......
  • Request a trial to view additional results

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