Libеrty Home Equity Solutions, Inc, (“Liberty”) appeals from an order granting Appellee Patsy Raulston’s motion for involuntary dismissal and entering final judgment in this foreclosure case. Liberty argues that the trial court reversibly erred in granting the motion for involuntary dismissal because it presented all the evidence required to establish a prima facie case for foreclosure, and the trial court impermissibly weighed Liberty’s evidence in ruling on the motion. We agree and reverse;
In March 2009, appellee entered into a home equity conversion loan agreement with Liberty, Liberty agrеed to advance appellee up to $286,500 in exchange for repayment of all advances with interest. Appellee executed a note and a mortgage to memоrialize and secure the loan.
Appellee defaulted under the terms of the note and mortgage by failing to pay the property taxes and hazard insurance premiums. The loan servicer sent appellee a letter informing her of the breach and the action required to cure the default. When appellee failed to cure the default, Liberty emailеd a written request to the United States Department of Housing and Urban Development (“HUD”) for approval to commence a foreclosure action, pursuant to Paragraph 9 of the mortgage agreement.
Deval, LLC, HUD’s loan servicer, responded by letter dated July 30, 2012. The letter was a.form letter with a check in the “Request APPROVED” box.. However, there was additional languagе in the letter that stated the following: ‘Tour request has been reviewed and is currently in a ‘pending status. The request cannot be approved at this time due to the following reason(s): 1) Failure to рrovide appropriate backup documentation to support your request. The following documentation was not provided.” Notably, there was no selection from the list of potential documents that allegedly had not been provided. Liberty later sent a repayment notice to ap-pellee advising her that the loan was due and payable as a result of the default and that she was required to cure the default.
At trial, a witness testified on behalf of Liberty and laid the foundation for admission of the note, allonge, mortgage, power of attorney, breach letters, HUD request and approval letters, and the loan balance. After Liberty concluded its case-in-chief, appellee moved for an involuntary dismissаl. The trial court granted the motion and dismissed the case with prejudice. The court found that: (1) the amount owed should have been rolled into the line of credit per the loan agreemеnt and HUD rules; (2) Liberty failed to comply with HUD rules of approval to foreclose; (3) Liberty failed to meet the requirements of 24 C.F.R. § 206.205 (2014); (4) the default was at most a technical default; and (5) equity authorizеd the court to dismiss the case because the borrower had a right to comply and rely on her loan documentation.
On appeal, Liberty argues that the trial court erred in granting appellee’s motion for involuntary dismissal where it admitted into evidence all the evidence required to establish a prima facie case for foreclosure. Specifically, Liberty argues that it admitted into evidence the note and mortgage, evidence of appellee’s default and the outstanding debt on the note, an acceleration letter, and а HUD approval letter to institute a foreclosure action.
Appellee counters that Liberty failed to establish a prima facie case for foreclosure becаuse Liberty did not satisfy all the conditions precedent to suit, particularly the requirement that it obtain HUD approval before commencing a foreclosure action.
“A motion for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b) in a non-jury trial can be equated to a motion for directed verdict in a jury trial.” Deutsche Bank Nat'l Tr. Co. v. Huber,
The applicable standard of review for a motion for involuntary dismissal is de novo. Id. When reviewing the grant of such a motion, the appellate court must view the evidence and all inferences of fact in the light most favorable to the nonmov-ing party. Id. Thus, the appellate court can affirm the directed verdict only where no valid view of the evidence could support a verdict for the nonmoving party. Id. at 563-64.
To establish a prima facie case, a foreclosure plaintiff must prove: (1) an agreement between the parties; (2) a default by the defendant; (3) acceleration of the debt to maturity; and (4) the amount duе. Ernest v. Carter,
In the foreclosure context, a plaintiff need only substantially comply with conditions precedent. Fed. Nat’l Mortg. Ass’n v. Hawthorne,
Here, Liberty established a primafacie case by submitting proof of the note and mortgage, the defendant’s default, the accelеration letter, and the outstanding debt on the note. To satisfy the condition precedent of obtaining HUD- approval, Liberty admitted a HUD letter that purportedly approved acсelerating the debt and bringing a foreclosure action. The letter from HUD’s servicer was a check-in-the-box form which required the servicer to check the box corresponding to its resрonse to Liberty’s request. The letter showed, and Liberty’s witness testified, that the only box checked was the “Request APPROVED” box. Although other form language in the letter created some ambiguity regarding HUD’s apрroval for foreclosure, a reasonable conclusion is that HUD’s ser-vicer approved Liberty’s request to call the loan due and bring the foreclosure action becausе the “Request APPROVED” box was the only box checked. When this evidence is considered in the light most favorable to Liberty (the nonmoving party) and every reasonable conclusion or inferencе is drawn from this evidence, it is reasonable to infer and conclude that HUD’s servicer approved Liberty’s request to bring the foreclosure action.
Moreover, even assuming a confliсt as to whether the letter granted approval or the approval was pending, the conflict should have been resolved in favor of Liberty and the motion for involuntary dismissal denied. See Boca Golf View, Ltd. v. Hughes Hall, Inc.,
Liberty also argues that the trial court erred in finding that аppellee’s failure to pay property taxes and hazard insurance premiums was not a material breach that justified foreclosure, and that Liberty was required to roll up the аmount due in a credit line.
Paragraph 2 of the Mortgage provides as follows:
Payment of Property Charges. Borrower shall pay all property charges consisting of taxes, ground rents, flood and hazard insurance premiums, and special assessments in a timely manner, and shall provide evidence of payment to Lender, unless Lender pays property charges by withholding funds from monthly payments due to the Borrower or by charging such payments to a line of credit as provided for in the Lоan Agreement.
(emphasis added).
Here, appellee was required under the terms of the mortgage agreement to make tax and insurance premium payments. Ap-pellee’s obligation to pay these charges was excused - only if Liberty withheld the funds from the monthly payments due to appellee or charged the payments to a line of credit. And although, as the trial court found, Liberty could have rolled up the amount due into a credit line to cure the default, it was not obligated to do so by the
For the foregoing reasons, we reverse the final judgment in favor of appellee and remand for further proceedings consistent with this opinion.
Reversed and Remanded.