September 13, 2012

Take Notice: Fourth DCA Reverses Summary Judgment of Foreclosure Where Homeowner Claimed Bank Failed to Provide Notice

Finnegan v. Deutsche Bank National Trust Co., 4D11-939

Deutsche Bank filed a mortgage foreclosure action alleging that Finnegan had failed to make payments on the promissory note. Deutsche Bank claimed that all conditions precedent to acceleration of the note, and the foreclosure action, had occurred. The mortgage document specified as a condition precedent that Deutsche Bank could not commence a foreclosure action without providing Finnegan notice of the alleged breach and an opportunity to correct it. Finnegan filed an answer in which she claimed she had not received notice of default in compliance with the mortgage provisions. Deutsche Bank sought summary judgment. Finnegan filed an affidavit again swearing that she had not received notice. Deutsche Bank filed unsworn notice letters it had allegedly sent to Finnegan. The trial court granted summary judgment in favor of Deutsche Bank.

On appeal, the Fourth District Court of Appeal (“Fourth DCA”) held that summary judgment was improper in this case. The Fourth DCA held that Finnegan’s affidavit swearing that she never received the notice created an issue of material fact that precluded summary judgment. The Fourth DCA also noted that the bank’s unsworn letters in support of its motion for summary judgment did not satisfy the procedural requirements regarding affidavits summary judgment. The Court reversed the summary judgment of foreclosure and remanded for further proceedings.