KABOOM…BOOM…BOOM…..Judy v. MSMC Venture…LETTERS OF ACCELARATION MUST BE ACCURATE!

The failure of Plaintiffs to properly accelerate their own loans, an essential prerequisite to foreclosure, is an issue that is causing may, many foreclosure complaints to be dismissed all across the state.
Well, here’s another opinion that supports this practice.   If you are not represented by an attorney…you need one who can carefully examine your case to see if this defense applies to you…
Thomas Judy, Jill Densmore Judy, and State Trustee Services, LLC,
(collectively referred to as the Judys) appeal a final judgment of mortgage foreclosure
entered against them in favor of MSMC Venture, LLC. Because MSMC failed to
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conclusively refute the Judys’ affirmative defense that they were not given proper notice
of default as required by the mortgages at issue, we conclude that the trial court erred
by entering summary judgment in favor of MSMC. Accordingly, we reverse and remand
for further proceedings.
In May 2006, the Judys executed and delivered two promissory notes and
mortgages for $227,500 and $84,000 to Market Street Mortgage Corp., MSMC’s
predecessor-in-interest. In August 2007, MSMC sent notice of default and breach to the
Judys for each of the loans. Thereafter, MSMC filed its mortgage foreclosure action
against the Judys. The Judys’ answer asserted as an affirmative defense that MSMC
had not provided proper notice of default as required by the mortgage terms. MSMC
denied all affirmative defenses and subsequently filed a motion for final summary
judgment. The trial court granted summary judgment and entered a final judgment of
mortgage foreclosure against the Judys. In doing so, we conclude the trial court erred
because MSMC failed to conclusively refute the Judys’ affirmative defense regarding
sufficiency of notice.
We review de novo a trial court’s ruling on a motion for summary
judgment. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130
(Fla. 2000). “Summary judgment cannot be granted unless the pleadings, depositions,
answers to interrogatories, and admissions on file together with affidavits, if any,
conclusively show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Konsulian v. Busey Bank,
N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011) (citing Fla. R. Civ. P. 1.510(c)). The
movant “must not only establish that no genuine issues of material fact exist as to the
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parties’ claims, but it also must either factually refute the affirmative defenses or
establish that they are legally insufficient.” Id. (citing Morroni v. Household Fin. Corp. III,
903 So. 2d 311, 312 (Fla. 2d DCA 2005)). ” ‘The burden of proving the existence of
genuine issues of material fact does not shift to the opposing party until the moving
party has met its burden of proof.’ ” Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71
So. 3d 251, 253 (Fla. 2d DCA 2011) (quoting Deutsch v. Global Fin. Servs., LLC, 976
So. 2d 680, 682 (Fla. 2d DCA 2008)).
Here, the terms of the two mortgages at issue required MSMC to specify
the default. Paragraph twenty-two of the first mortgage provides, in pertinent part, the
following:
Acceleration; Remedies. Lender shall give notice to
Borrower prior to acceleration following Borrower’s breach of
any covenant or agreement in this Security Instrument . . . .
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.
Likewise, paragraph seventeen of the second mortgage provides the following:
Lender prior to acceleration shall give notice to Borrower as
provided in paragraph 12 hereof specifying: (1) the breach;
(2) the action required to cure such breach; (3) a date, not
less than 10 days from the date the notice is mailed to
Borrower, by which such breach must be cured; and (4) that
failure to cure such breach on or before the date specified in
the notice may result in acceleration of the sums secured by
this Mortgage, foreclosure by judicial proceeding, and sale of
the Property.
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Although MSMC argues that it provided the Judys with proper notice of default, the
notices failed to specify the breach. Instead, the notices generally alleged that the
Judys committed a breach. And failure to specify the default as required by the
mortgage terms requires reversal because MSMC did not meet its burden in refuting the
Judys’ affirmative defense of insufficient notice of default. See generally Konsulian, 61
So. 3d at 1285 (reversing final summary judgment where the bank “did not refute
Konsulian’s defenses nor did it establish that Konsulian’s defenses were legally
insufficient”). Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.