Konsulian v. Busey Bank, N.A. ex rel. Acquisition of Tarpon Coast National Bank
61 So. 3d 1283
| Fla. Dist. Ct. App. | 2011Background
- Busey sent a pre-acceleration letter to Konsulian on October 6, 2008 and filed a foreclosure action on October 9, 2008.
- The mortgage requires 30 days’ notice prior to acceleration after a borrower’s breach (paragraph 22).
- The acceleration notice must state the default, cure action, cure deadline (at least 30 days), and consequences of non-cure, including acceleration and foreclosure.
- Konsulian raised timeliness and sufficiency of the acceleration letter as affirmative defenses and filed a supporting affidavit challenging the amounts claimed.
- The trial court entered final judgment of foreclosure on April 19, 2010; the judgment did not address the defenses, and the appeal challenges the notice/acceleration conditions precedent rather than damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Busey cured the conditions precedent to foreclosure by providing proper notice. | Konsulian argues the notice did not meet the 30-day requirement and thus foreclosures was premature. | Kusey contends the notice complied with the mortgage terms and acceleration was appropriate. | Foreclosure premature; conditions precedent not satisfied. |
| Whether the acceleration letter satisfied the mortgage’s required content and timing. | Konsulian asserts the letter failed to specify the default and cure deadline properly. | Busey argues the letter complied with the contract terms. | Acceleration notice deficient; reversal warranted. |
Key Cases Cited
- Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009) (notice/condition precedent to foreclosure required by mortgage language)
- Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29 (Fla. 2000) (contract language governs interpretation of plain terms in mortgage)
- Suarez v. City of Tampa, 987 So.2d 681 (Fla. 2d DCA 2008) (review of summary judgment with favorable view to nonmovant)
- Garden St. Iron & Metal, Inc. v. Tanner, 789 So.2d 1148 (Fla. 2d DCA 2001) (standard for reviewing summary judgment rulings)
- Moroni v. Household Fin. Corp. III, 903 So.2d 311 (Fla. 2d DCA 2005) (affirmative defenses must be legally sufficient)
- Richardson v. Wal-Mart Contracting Group, LLC, 814 So.2d 534 (Fla. 2d DCA 2002) (burden on moving party to show no genuine issue of material fact)
- Holl v. Talcott, 191 So.2d 40 (Fla.1966) (summary judgment standard and burden of proof)
- Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000) (de novo standard; record viewed in favor of nonmovant)