Young v. Nationstar Mortgage, LLC
205 So. 3d 790
| Fla. Dist. Ct. App. | 2016Background
- Nationstar filed a one-count foreclosure complaint (Mar. 2013) alleging the Youngs defaulted on a 2005 note and attaching the note indorsed in blank.
- The Youngs answered, denying two conditions precedent: (1) Nationstar failed to give notice of assignment as required by Fla. Stat. § 559.715, and (2) Nationstar failed to give the paragraph 22 written notice of acceleration/default required by the mortgage.
- Nationstar moved for summary judgment with an affidavit of indebtedness and a later affidavit claiming Nationstar (holder in possession) mailed a September 2012 “breach letter.”
- The Youngs opposed, asserting they never received proper paragraph 22 notice; their opposing affidavits were untimely and not considered below.
- The trial court granted summary judgment for Nationstar; the Second DCA reversed as to the paragraph 22 issue because Nationstar did not meet its burden to refute that defense at summary judgment.
Issues
| Issue | Plaintiff's Argument (Youngs) | Defendant's Argument (Nationstar) | Held |
|---|---|---|---|
| Is failure to provide § 559.715 notice a defense that precludes foreclosure? | § 559.715 notice was not given; this invalidates Nationstar’s action. | § 559.715 does not create a condition precedent and is inapplicable if holder enforces the note. | § 559.715 is not a condition precedent to foreclosure; defense fails as matter of law. |
| Did Nationstar comply with mortgage paragraph 22 notice requirements (notice of default/acceleration)? | Nationstar did not send any paragraph 22 notice or, if it did, the notice failed to include required information. | Nationstar’s affidavits show a breach letter was mailed, eliminating any factual dispute. | Reversed: Nationstar did not meet its burden at summary judgment to refute or show the paragraph 22 defense was legally insufficient; factual/ compliance issues remain for resolution. |
Key Cases Cited
- Amstone v. Bank of N.Y. Mellon, 182 So. 3d 804 (Fla. 2d DCA 2016) (summary judgment must refute affirmative defenses or show they are legally insufficient)
- Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011) (movant must refute defenses or show legal insufficiency at summary judgment)
- Bryson v. Branch Banking & Trust Co., 75 So. 3d 783 (Fla. 2d DCA 2011) (moving party bears burden to establish nonmovant cannot prevail)
- Alejandre v. Deutsche Bank Trust Co. Ams., 44 So. 3d 1288 (Fla. 4th DCA 2010) (paragraph 22 compliance can raise factual dispute precluding summary judgment)
- Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015) (paragraph 22 requires substantial, not strict, compliance)