Sаrkis Konsulian appeals the trial court’s order granting summary judgment in favor of Busey Bank (“Busey”). On appeal, Konsulian argues that Busey failed to meet a condition precedent to the filing of the complaint. Specifically, Konsulian asserts that Busey filed suit prematurely, giving Konsulian incomplete and inadequate notice and opportunity to cure. In addition to being prematurely filed, Konsu-lian claims that the acceleration letter failed to state the dеfault as required by the mortgage terms. We agree and reverse. Because our ruling is based оn the conditions precedent issue, we do not reach the issue of the accuracy of the damages calculation as challenged in Kon-sulian’s affidavit.
On October 6, 2008, Busey sent a preac-celeration letter to Konsulian. On October 9, 2008, only three days later, the bank filed a mortgage foreclosure action against Konsulian. However, pursuant to pаragraph twenty-two of the mortgage, Busey was required to give Konsulian thirty days notice prior tо filing suit. Paragraph twenty-two of Konsulian’s mortgage provides as follows:
22. Acceleration; Remedies. Lenders shall give notice to the Borrower prior to acceleration fоllowing Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). Thе notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than thirty (30) days from the date the notice is given to Borrower, by which the default must be сured; and, (d) that the failure to cure the default on or before the date specified in the notice may result in an acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclоsure proceedings the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or bеfore the date specified in the notice, a Lender, at its option, may require immediate payment in full of all sums secured by this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to all attorneys’ fees and costs of title evidence.
Konsulian appropriately raised both the timeliness argument and the sufficiency of the acceleration lettеr argument in his affirmative defenses. In addition, Konsulian filed an affidavit in opposition to the summary judgment motion contesting the amounts claimed by Busey. Konsulian challenged the interest and late fеe calculation, as well as whether all payments were credited. At the time of the sum
On April 19, 2010, the trial court entered final judgment of foreclosure, which resulted in the sale of the property to Busey. The final judgment does nоt address the merits or disposition of Konsuliaris defenses.
Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving рarty is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The standard of review for an order granting summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P.,
Here, nothing in Busey’s complaint, motion for summary judgment, or affidavits indicates that Busey gave Konsu-liаn the notice which the mortgage required. The language in the mortgage is clear and unambiguоus. The word “shall” in the mortgage created conditions precedent to foreclosure, which were not satisfied. See Frost v. Regions Bank,
Reversed and remanded.