This is another weapon for Florida homeowners. The court is instructing us what to do.
Plaintiff must not only prove that the letter of default was sent, but it must prove that it was sent FIRST CLASS.
Kurian v. Wells Fargo (Fla. 4th DCA 2013)
Homeowners appeal a final summary judgment of foreclosure. They
argue the trial court erred in entering summary judgment because the
bank failed to refute two of their affirmative defenses. We agree and
The homeowners executed a note and mortgage with the bank.
Section 22 of the mortgage stated, in pertinent part:
Lender shall give notice to Borrower prior to acceleration
following Borrower's breach of any covenant or agreement in
this Security Instrument . . . . The notice shall specify: (a)
the default; (b) the action required to cure the default; (c) a
date, not less than 30 days from the date the notice is given
to Borrower, by which the default must be cured; and (d)
that failure to cure the default on or before the date specified
in the notice may result in acceleration of the sums secured
by this Security Instrument . . . .
The bank filed a Complaint to foreclose the mortgage, alleging the
homeowners defaulted on December 1, 2008. Attached to the Complaint
was a letter, dated March 25, 2009, notifying the homeowners that the
mortgage was in default and the bank had accelerated all sums due. The
homeowners answered and asserted affirmative defenses. Two of those
defenses were: (1) lack of timely notice of the acceleration; and (2) failure
of conditions precedent concerning the “acceleration” terms and