Another case in point where a summary judgment entered in favor of a mortgagee was reversed on appeal. In Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696 (Fla. 4th DCA 2012), a mortgagor appealed from a grant of summary judgment in favor of the mortgagee. In February 2010, Wells Fargo filed a mortgage foreclosure action against the defendant. The defendant failed to serve an answer to the complaint. Wells Fargo, however, did not move for a default. Instead, in April 2010, Wells Fargo filed a motion for summary judgment, and subsequently filed the original note (endorsed in blank), and an amended affidavit as to amounts due and owing.
The defendant also filed a motion for summary judgment in November 2010 arguing that the suite should be dismissed because Wells Fargo failed to comply with the pre-suit notice requirement in the acceleration clause of the mortgage. Defendant did not set his motion for hearing, and in April 2011, he filed an opposition to Plaintiff’s motion, without submitting any supporting affidavits.
The trial court granted Wells Fargo’s motion, and entered a final judgment of mortgage foreclosure. On appeal, the defendant argues that summary judgment was improper because a genuine issue of material fact existed as to whether Wells Fargo complied with the condition precedent of providing a pre-suit default notice. In that regard, the mortgage required the lender to give the borrower thirty days’ notice and an opportunity to cure the default prior to filing suit. The appellate court agreed with the defendant.
Furthermore, the court noted that when Wells Fargo moved for summary judgment, defendant had not filed an answer and a default had not been entered against him. A plaintiff who moves for summary judgment before a defendant files an answer has a “difficult burden” in that the plaintiff must not only establish that no genuine issue of material fact exists but that the defendant could not raise any genuine issue of material fact if the defendant were permitted to answer the complaint. The plaintiff must essentially anticipate the content of the defendant’s answer and establish the record accordingly. In this case, while Wells Fargo made a general allegation in its complaint that all conditions precedent had occurred, there was no evidence in the record that Wells Fargo complied with the pre-suit notice requirements set forth in the mortgage; Wells Fargo’s affidavit made no mention of the conditions precedent.
Accordingly, the Fourth District Court of Appeal reversed the final judgment of foreclosure and remanded the case for further proceedings.
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