No Foreclosure Summary Judgment Without Refuting "Notice and Opportunity to Cure" Defense: Remember to "Say it Ain't So"

In an opinion issued yesterday in Chester A. Brooks, et al. v. Bank of America, et al., Case No. 4D14-3337 (Fla. 4^th DCA May 25, 2016), Florida's Fourth District Court of Appeal made clear that, in order to obtain summary judgment of foreclosure, a lender must prove facts to refute a defense of failure to provide notice of default and opportunity to cure.

In Brooks, the trial court granted summary judgment of foreclosure, even though the borrowers had asserted a legally sufficient affirmative defense of failure to comply with the requirements of paragraph 22 of the mortgage, which required notice of intent to accelerate and an opportunity to cure.  However, because the lender had failed to establish by summary judgment evidence that it had sent the required notice, the appellate court reversed the final judgment.