On October 1, 2014, the Fourth District Court of Appeals of Florida issued an Opinion in the case of Ann Freiday v. One West Bank, FSB.  In this case the Plaintiff One West Bank, FSB filed a Verified Foreclosure Complaint against the Defendant, Ann Freiday.  In the Verified Complaint, the plaintiff alleges that, “all conditions precedent to the acceleration of the note and foreclosure of the mortgage have occurred or have been performed, waived or excused.”  Subsequently, One West filed a Motion for Summary Final Judgment, with an affidavit of indebtedness attached to the motion.  A copy of a default letter was also attached to the motion.

Ms. Freiday Answer raised numerous Affirmative Defenses, including a failure by One West Bank, FSB to comply with a condition precedent.  The Trial Court granted One West Bank’s Motion for Summary Final Judgment.  This judgment was entered despite the fact that, “Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.”  Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th  DCA 2009)(quoting Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995)).

The appeals court noted that they’ve previously held that, “[m]erely attaching documents which are ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).”  Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So. 3d 1093, 1094 (Fla. 4th  DCA 2012) (quoting Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th  DCA 1997)).  The court went on to further note that, “in Finnegan, the bank filed a Motion for Summary Judgment and later filed copies of unsworn default letters that had allegedly been sent to the homeowner.  This court reversed the entry of summary judgment, and held that the trial court should not have considered the unsworn letters as evidence.  It further observed that the affidavit filed by the bank in support of this motion failed to address whether the bank complied with conditions precedent.  Id. At 1094; see Bryson v. Branch Banking & TrustCo., 75 So. 3d 783, 786 (Fla. 2d DCA 2011) (reversing summary judgment of foreclosure when the bank filed ‘unauthenticated copies of default letters,’ and noting that the default letters were not ‘self-authenticating because extrinsic evidence to establish its truthfulness is still required.”   Thus the court held that, “because the default letter was not competent evidence, the trial court should not have relied on the default letter when considering OneWest’s motion for summary judgment.

Freiday v One West Bank – Summary Judgment & Failure to Prove Condition Precedent

A Condition Precedent is a concept of contract law that can be applied in foreclosure defense as a potential affirmative defense.  Black’s Law Dictionary defines a Condition Precedent as, “An act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.  If the condition does not occur and is not excused, the promised performance need not be rendered.  The most common condition contemplated by the this phrase is the immediate or unconditional duty of performance.   Most standard FHA Mortgages include a standard paragraph 22 provision which contains a Condition Precedent, which can be utilized by home owner’s as a Affirmative Defense to a Foreclosure Complaint.  There standard mortgage paragraph 22 requires that the lender shall give the homeowner 30 days written notice of the default prior to acceleration of the loan.  Most standard mortgage paragraph 22 read,

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 option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding.  Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.

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 option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding.  Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.

If you are confronted with foreclosure you should consult with an attorney to determine if this affirmative defense is applicable to your case and can be utilized to defend against the foreclosure.  You only have twenty (20) days after being served with foreclosure complaint to file a response or you could have a clerk’s default entered against you which dramatically limit your ability to defend the law suit.

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