Samaroo v. Wells Fargo Bank, 5D13–1585.

• Decision Date: 01 May 2014
• Docket Number: No. 5D13–1585.,5D13–1585.
• Citation: Samaroo v. Wells Fargo Bank, 137 So.3d 1127 (Fla. App. 2014)
• Parties: Pamela SAMAROO and Jessie Samaroo, Appellants, v. WELLS FARGO BANK, etc., et al., Appellees.
• Court: Florida District Court of Appeals

137 So.3d 1127

Pamela SAMAROO and Jessie Samaroo, Appellants,

v.WELLS FARGO BANK, etc., et al., Appellees.

No. 5D13–1585.

District Court of Appeal of Florida, Fifth District.

March 28, 2014.

Rehearing Denied May 1, 2014.

Henry W. Hicks and Adam J. Knight, of Henry W. Hicks, P.A., Tampa, for Appellants.

Jeffrey S. York and N. Mark New, of McGlinchey Stafford, Jacksonville, for Appellees.

GRIFFIN, J.

Pamela Samaroo and Jessie Samaroo[“the Samaroos”] appeal the entry of summary final judgment of mortgage foreclosure in favor of Wells Fargo Bank, National Association, as Trustee for the Holders of the First Franklin Mortgage Loan Trust2006–FF15Mortgage Pass–Through Certificates, Series2006–FF15[“Wells Fargo”].The Samaroos raise three issues on appeal; we find merit in only one.We agree that Wells Fargo failed to satisfy the notice requirement of section 22 of the mortgage as a condition precedent to foreclosure.

On April 8, 2009, Wells Fargo filed its complaint to foreclose on the Samaroos' mortgage.Wells Fargo alleged that there had been a default under the note and mortgage, and that all conditions precedent to the filing of the action had been performed or had occurred.The Samaroos filed an amended answer and affirmative defenses, asserting, among other defenses, that Wells Fargo had failed to give the Samaroos notice of default in compliance with paragraph 22 of the mortgage.

Wells Fargo filed a motion for summary final judgment, asserting that the material facts were not in dispute, that it had standing to foreclose the mortgage as it was the owner and holder of the note and mortgage, and that Pamela Samaroo was in default, had been sent a default letter, and owed amounts as identified in an attached affidavit of indebtedness.Wells Fargo asserted that “a notice of default letter was sent to DefendantPamela Samaroo, in accordance with Paragraph 22 of the Mortgage, on December 17, 2008.”It ultimately argued: “ Accordingly, because Plaintiff provided the notice of default in compliance with paragraph 22 of the Mortgage, Defendants' Tenth, Nineteenth, and Twentieth Affirmative Defenses do not bar entry of Final Summary Judgment.”

Attached to Wells Fargo's motion for summary final judgment are an affidavit in support of the motion and an affidavit of indebtedness.Affiant, Deborah A. Schroeder[“Schroeder”], represented that she was an officer at Select Portfolio Servicing, Inc.[“SPS”], and that SPS serviced the mortgage loan for Wells Fargo.In paragraph 13 of her affidavit, she stated:

The Loan Records reflect that on December 17, 2008, a default letter was sent to DefendantPamela Samaroo, pursuant to Paragraph 22 of the Mortgage, informing her of the default and providing the amounts due under the Note.A copy of the acceleration/default letter is attached hereto as Exhibit “E.”

The trial court conducted a hearing on Wells Fargo's motion for summary final judgment and entered summary final judgment in favor of Wells Fargo.

The Samaroos' tenth affirmative defense asserted that Wells Fargo failed to give notice of default that complied with the notice requirements set forth in paragraph 22 of the mortgage.Paragraph 22 of the mortgage provides:

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 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...