Defendants moved to dismiss a mortgage foreclosure on the basis that the “notice of intent to foreclose” sent by Plaintiff to Defendants complied with the notice requirements of clause 22 of the mortgage.
Clause 22 of the mortgage provides, in pertinent part, that
[Plaintiff] shall give notice to [Defendant] prior to acceleration following Borrower’s [alleged] 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 agreement, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform [Defendant] of the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of [Defendant] to acceleration and foreclosure.
The word “shall” in the mortgage created conditions precedent to Plaintiff’s alleged right to foreclosure of the security instrument. Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1164c].
The language of clause 22 of the mortgage is clear and unambiguous. Id. Nevertheless, the notice of intent to foreclose filed by Plaintiff does not comply with the clear and unambiguous language of Clause 22. As a result, Plaintiff failed to satisfy a condition precedent to its alleged right to foreclose the mortgage. Judgment for Defendant. Case dismissed.
SUNTRUST MORTGAGE, INC, v. ALJISAR, Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 12-000989-CI-19. December 7, 2012. Amy M. Williams, Judge. Online Reference: FLWSUPP 2004SUNT
SUNTRUST MORTGAGE, INC. v. CHUTE, Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 11-8210-CI-19. January 16, 2013. Honorable Amy M. Williams, Judge.Online Reference: FLWSUPP 2004CHUT
the notice of intent to foreclose filed by Plaintiff did not substantially comply with Clause 22 because the notice provides that Defendants “have the right to bring a court action at any time to assert the non-existence of default or any other defenses [Defendants] might have to acceleration and sale.” The mortgage requires that the notice state that Defendants “have the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of [Defendants] to acceleration and foreclosure.”