U.S. BANK, N.A., AS TRUSTEE FOR RFMSI 2006-S10, Appellant,
ROBERT A. ADAMS, SHEILAH C. ADAMS and GULF AND BAY CLUB CONDOMINIUM ASSOCIATION, INC., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Nancy K.
Donnellan, Senior Judge, and Kimberly C. Bonner, Judge.
A. Morande and Michael K. Winston of Carlton Fields Jorden
Burt, P.A., West Palm Beach, and Nicholas A. Brown of Carlton
Fields Jorden Burt, P.A., Tampa, for Appellant.
P. Stopa of Stopa Law Firm of Tampa, for Appellees Robert A.
Adams and Sheilah C. Adams.
appearance for Appellee Gulf and Bay Club Condominium
residential foreclosure action, U.S. Bank seeks review of a
final summary judgment in favor of the defendants, Robert and
Sheilah Adams. The summary judgment was based on the
Adamses' argument that U.S. Bank failed to comply with
the condition precedent of giving notice pursuant to section
559.715, Florida Statutes (2013), of the Florida Consumer
Collection Practices Act. We reverse because section 559.715
does not create a condition precedent. In so doing, we reject
two alternate bases for affirmance presented by the Adamses
regarding U.S. Bank's alleged failure to comply with a
condition precedent in paragraph 22 of the mortgage.
operative complaint, U.S. Bank alleged that all conditions
precedent had been fulfilled or had occurred. In their
answer, the Adamses alleged that U.S. Bank failed to give
notice that the debt had been assigned to U.S. Bank as
required by section 559.715 and failed to give notice of
default as required by paragraph 22 of the mortgage. The
Adamses eventually moved for summary judgment on these bases.
support of these arguments, the Adamses attached affidavits
in which each of them asserted as follows:
The mortgage in this case required that the bank give me 30
days' notice of any alleged default and an opportunity to
cure such default prior to accelerating the balance alleged
to be due and prior to initiating any foreclosure lawsuit.
The notice was supposed to include specific terms outlined in
paragraph 22 of the mortgage. I have never received any such
notice from Plaintiff (or anyone purporting to act [on]
Plaintiff's behalf). I have never been given any default
or given any notice of any alleged default on my mortgage or
an opportunity to cure said default.
I never signed a Note or Mortgage with Plaintiff, and it did
not give me written notice that this debt was allegedly
assigned to it, nor did it even provide me with the required
notice of assignment 30 days prior to filing this lawsuit. .
Bank filed a memorandum in opposition to the motion for
summary judgment in which it argued that section 559.715 does
not create a condition precedent to filing a mortgage
foreclosure action. As to paragraph 22, U.S. Bank asserted it
had complied with the mortgage's notice requirement by
mailing a notice of default to the Adamses, and it filed a
copy of the notice with its memorandum. U.S. Bank
alternatively argued that the Adamses' affidavits were
insufficient to establish the absence of an issue of material
fact regarding whether U.S. Bank gave notice of default. U.S.
Bank asserted that the notice of default was subject to a
"mailbox rule" in paragraph 15 which deems notice
to be given when mailed. According to U.S. Bank, the
Adamses' affidavits did not refute its assertion in the
complaint that it complied with all conditions precedent
because the affidavits failed to establish that the requisite
notice had not been mailed.
hearing on the Adamses' summary judgment motion was
brief. The Adamses argued that section 559.715 created a
condition precedent and that U.S. Bank had not given the
required notice. In response, U.S. Bank argued that the
Adamses' affidavits were legally insufficient to
establish their entitlement to summary judgment because they
had not established that U.S. Bank failed to send any
required notice; rather, they simply established that they
had not received such notice. At the conclusion of the
hearing, the trial court granted the motion for summary