Background

• Wells Fargo filed a February 2010 mortgage foreclosure action against Dominko, alleging default and that all conditions precedent to acceleration had occurred; Dominko did not answer.
• In April 2010 Wells Fargo moved for summary judgment and later produced the original note endorsed in blank; the Amended Affidavit did not mention conditions precedent.
• Dominko filed a November 2010 summary judgment motion arguing failure to provide pre-suit notice, but did not set a hearing; in April 2011 he opposed without affidavits.
• After a hearing the trial court granted Wells Fargo’s summary judgment and entered final foreclosure.
• The central issue is whether Wells Fargo complied with the pre-suit notice of default (paragraph 22); the record lacks evidence of such compliance, and Wells Fargo did not anticipate possible defenses by Dominko.

Issues

Key Cases Cited

• Zervas v. Wells Fargo Bank, N.A., 93 So.3d 453 (Fla. 2d DCA 2012) (reversed when no evidence of compliance with pre-suit notice; absence of notice creates genuine issue of material fact)
• Goncharuk v. HSBC Mortg. Servs., Inc., 62 So.3d 680 (Fla. 2d DCA 2011) (plaintiff must address notice of acceleration in motion; record must anticipate defendant's potential answer)
• Sandoro v. HSBC Bank, USA Nat’l Ass’n, 55 So.3d 730 (Fla. 2d DCA 2011) (reversed where lack of pre-suit notice raised in motion and opposition; genuine issue of material fact existed)
• Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So.3d 1093 (Fla. 4th DCA 2012) (reversing where notice of default not addressed; unsworn documents cannot create record)
• Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) (standard of review for summary judgments; burden on movant to show no genuine issue of material fact)
• Albelo v. S. Bell, 682 So.2d 1126 (Fla. 4th DCA 1996) (affirming emphasis on absence of genuine issues of material fact in summary judgments)