U.S. BANK NATIONAL ASSOCIATION, as trustee, on Behalf of the Holders of the Home Equity Asset Trust 2002-4 Home Equity Pass-Through Certificates, Series 2002-4, Appellant,
DONALD A. DOEPKER and MARY C. DOEPKER, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Anthony
Allison Morat and Ronnie J. Bitman of Pearson Bitman, LLP,
Maitland, for Appellant.
P. Stopa of the Stopa Law Firm, Tampa, for Appellees.
Bank National Association appeals the order granting summary
judgment in favor of Donald and Mary Doepker and dismissing
its complaint without prejudice to file a new lawsuit. The
Doepkers challenged the bank's compliance with paragraph
22 of the mortgage by filing a single motion seeking both
summary judgment and dismissal of the bank's complaint.
The trial court ultimately agreed with the Doepkers'
argument that the bank's notice of default was defective
and granted the motion to dismiss and entered summary
judgment for the Doepkers. This was error.
review an order granting summary judgment or a motion to
dismiss de novo. Konsulian v. Busey Bank, N.A., 61
So.3d 1283, 1285 (Fla. 2d DCA 2011); Mortg.
Elec. Registration Sys., Inc. v. Azize, 965 So.2d
151, 153 (Fla. 2d DCA 2007). Motions to dismiss and for
summary judgment are not interchangeable, and one may not be
substituted for another. Holland v. Anheuser Busch,
Inc., 643 So.2d 621, 622-23 (Fla. 2d DCA 1994).
[C]ounsel must remember that [a motion for summary judgment
and a motion to dismiss have] separate purpose[s] under our
rules of civil procedure. A motion to dismiss is customarily
designed to test the legal sufficiency of a complaint to
state a cause of action, not to determine issues of ultimate
fact. The function of a motion for summary judgment is to
determine if the parties can offer sufficient proof to
support the issues framed in their pleadings.
Behnam v. Zadeh, 132 So.3d 951, 952 (Fla. 1st DCA
2014) (second and third alterations in original) (quoting
Holland, 643 So.2d at 623-24). Because the
bank's notice of default substantially complied with
paragraph 22 in this case, the Doepkers' motion should
not have been granted under either theory of relief.
22 default notices are reviewed for substantial compliance
and are sufficient when they advise the borrower of all
essential information concerning the borrower's default
and the action required to cure it." Ocwen Loan
Servicing, LLC v. Osmundsen, 204 So.3d 118, 119
(Fla. 2d DCA 2016) (citing Green Tree Servicing, LLC
v. Milam, 177 So.3d 7, 14-15 (Fla. 2d DCA 2015)
("[W]hen the content of a lender's notice letter is
nearly equivalent to or varies in only immaterial respects
from what the mortgage requires, the letter substantially
complies, and a minor variation from the terms of paragraph
twenty-two should not preclude a foreclosure action.")).
22 of the Doepkers' mortgage required that the bank's
notice of default 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 [the Doepkers], by which the default ...