U.S. Bank National Ass'n Ex Rel. Holders of the Home Equity Asset Trust 2002-4 Home Equity Pass-Through Certificates, Series 2002-4 v. Doepker
223 So. 3d 1083
| Fla. Dist. Ct. App. | 2017Background
- U.S. Bank, as trustee, sued Donald and Mary Doepker to foreclose a mortgage; the Doepkers moved for summary judgment and dismissal challenging the bank's compliance with paragraph 22 of the mortgage.
- Paragraph 22 requires a notice of default to specify the default, the action to cure, a cure date at least 30 days out, and a warning that failure to cure may result in acceleration and foreclosure.
- The bank sent a breach letter stating the Doepkers were in default, gave a cure amount of $83,638.47, set a cure date (February 6, 2014), warned of acceleration/foreclosure, and stated that payments accruing before the cure date must be made; it also provided a phone number to confirm the payoff amount.
- The trial court granted the Doepkers’ combined motion, concluding the notice was defective, entered summary judgment for the Doepkers, and dismissed the bank’s complaint without prejudice.
- U.S. Bank appealed; the Second District reviewed de novo and found the bank’s breach letter substantially complied with paragraph 22, so the trial court erred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the bank's breach letter complied with mortgage paragraph 22 | Doepkers: letter was defective and failed to meet paragraph 22 requirements | U.S. Bank: letter specified default, cure amount, cure date, acceleration/foreclosure warning, and provided means to confirm payoff | Court: letter substantially complied with paragraph 22; trial court erred in granting relief |
| Whether combined motion for summary judgment and dismissal was proper | Doepkers: sought summary judgment and dismissal based on alleged defective notice | U.S. Bank: motions are distinct and the court must analyze appropriate standard; bank’s letter met summary judgment standard | Court: motions are not interchangeable; regardless, relief should not have been granted because bank substantially complied |
| Whether proof of nonreceipt of mailed notice supports summary judgment for homeowners | Doepkers: later argued they never received the notice | U.S. Bank: mortgage requires mailing, not actual receipt; affidavit of nonreceipt insufficient to grant homeowner summary judgment | Court: nonreceipt argument was unpreserved and, in any event, would not support summary judgment because mailing — not receipt — is required |
| Whether minor variances in breach letter invalidate foreclosure action | Doepkers: minor differences render notice defective | U.S. Bank: immaterial variations that still convey essential information are permissible under substantial compliance | Court: substantial-compliance doctrine applies; immaterial differences do not bar foreclosure |
Key Cases Cited
- Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011) (standard of review for dismissal/summary judgment)
- Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151 (Fla. 2d DCA 2007) (de novo review of dismissal/summary judgment)
- Holland v. Anheuser Busch, Inc., 643 So. 2d 621 (Fla. 2d DCA 1994) (motions to dismiss and for summary judgment serve different purposes)
- Behnam v. Zadeh, 132 So. 3d 951 (Fla. 1st DCA 2014) (distinguishing functions of dismissal and summary judgment motions)
- Ocwen Loan Servicing, LLC v. Osmundsen, 204 So. 3d 118 (Fla. 2d DCA 2016) (paragraph 22 notices reviewed for substantial compliance)
- Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015) (minor variations that convey essential information still substantially comply)
- Diaz v. Wells Fargo Bank, N.A., 189 So. 3d 279 (Fla. 5th DCA 2016) (breach letter that includes amount due and a cure date substantially complies)
- Bank of Am. v. Cadet, 183 So. 3d 477 (Fla. 3d DCA 2016) (similar substantial-compliance holding for breach letters)
- JPMorgan Chase Bank, N.A. v. Ostrander, 201 So. 3d 1281 (Fla. 2d DCA 2016) (affidavit of nonreceipt insufficient because mortgage requires mailing)
- Roman v. Wells Fargo Bank, 143 So. 3d 489 (Fla. 5th DCA 2014) (same: mailing requirement, not actual receipt)
Reversed and remanded.