U.S. Bank Nat'Lass'N v. Jose Busquets & Oaks At Windemere Homeowners Ass'n

• Court: Florida District Court of Appeals
• Citation: U.S. Bank Nat'l Ass'n v. Busquets, 135 So.3d 488 (Fla. App. 2014)
• Decision Date: 21 March 2014
• Docket Number: No. 2D13–280.,2D13–280.
• Parties: U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Gsamp Trust 2006–NCI Mortgage Pass–Through Certificates, Series 2006–NCI, Appellant, v. Jose BUSQUETS and Oaks at Windemere Homeowners Association, Appellees.
• Writing for the Court: DAVIS

135 So.3d 488

U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Gsamp Trust 2006–NCI Mortgage Pass–Through Certificates, Series 2006–NCI, Appellant,

v.Jose BUSQUETS and Oaks at Windemere Homeowners Association, Appellees.

No. 2D13–280.

District Court of Appeal of Florida, Second District.

March 21, 2014.

Masimba M. Mutamba, Khari E. Taustin, and Jeremy W. Harris of Morris, Laing, Evans, Brock & Kennedy, Chtd., Wellington, for Appellant.

Mark P. Stopa of Stopa Law Firm, Tampa, for Appellee Busquets.

No appearance for remaining Appellee.

DAVIS, Chief Judge.

U.S. Bank National Association, as Trustee for the GSAMP TRUST 2006–NCI Mortgage Pass-through Certificates, Series 2006–NCI (the Bank),¹ challenges the trial court's summary final judgment entered in favor of Jose Busquets in the Bank's foreclosure action against Busquets.In the final judgment, the trial court dismissed the foreclosure action, concluding that the Bank failed to give proper notice before accelerating the loan as required by the terms of the mortgage.² The Bank argues that the trial court erred in finding its notice of acceleration deficient. We agree and reverse.

On October 31, 2005, Busquets borrowed funds from New Century Mortgage Corporation and executed a promissory note in favor of the lender to represent his obligation. He also executed a mortgage on his real property in favor of New Century to secure his obligations on the promissory note.³

The mortgage required that any notice of default and possible foreclosure proceedings advise “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 proceedings[,] and sale of the property.”

Busquets ultimately became delinquent on his loan payments, and on November 2, 2011, the Bank, through its servicing agent, sent a notice of default to Busquets. The language of the notice provided as follows:

Failure to bring your account current may result in our election to exercise our right to foreclose on your property. Upon acceleration, your total obligation will be immediately due and payable without further demand. In foreclosure proceedings, we are entitled to collect your total arrearage in addition to any expenses of foreclosure, including but not limited to reasonable attorney's fees and costs. If your loan has already been accelerated and foreclosure proceedings already begun, we will continue the foreclosure action (if possible). You have the right to assert in court the nonexistence of a default or any other defense to acceleration and foreclosure.

The Bank then filed its foreclosure complaint.

In response, Busquets filed a motion for summary judgment, arguing that pursuant to the terms of the mortgage contract, the notice of default was deficient in five ways. Busquets therefore maintained that the Bank had breached the mortgage agreement. Busquets argued that the foreclosure action should be dismissed due to the Bank's failure to show that all conditions precedent had been accomplished.

The trial court granted summary judgment, finding that the Bank's notice of default was deficient in two of the ways alleged by Busquets.⁴ The Bank now challenges that ruling.

On appeal, the Bank first argues that the trial court erred in finding that the notice it provided Busquets was deficient because it only advised Busquets that the holder of the note could institute foreclosure proceedings if the default was not cured, whereas the mortgage required that the notice advise of the potential of foreclosure by way of judicial proceedings. We agree.

“Under Florida 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) (applying this principle to the language of a mortgage). Here, the language of the Bank's notice meets the notice requirements set forth in the plain language of the mortgage contract. Busquets clearly was put on notice of the possibility of a foreclosure proceeding. And the trial court's concern that the word “proceeding” was not modified by the word “judicial” is misplaced because in Florida, the only method for foreclosure is a judicial proceeding. Cf. DeSilva v. First Cmty. Bank of Am., 42 So.3d...