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U.S. Bank National Association v. Doepker

Florida Court of Appeals, Second District

May 24, 2017

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,
v.
DONALD A. DOEPKER and MARY C. DOEPKER, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Pinellas County; Anthony Rondolino, Judge.

          Allison Morat and Ronnie J. Bitman of Pearson Bitman, LLP, Maitland, for Appellant.

          Mark P. Stopa of the Stopa Law Firm, Tampa, for Appellees.

          SLEET, Judge.

         U.S. 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.

         We 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.

         "Paragraph 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.")).

         Paragraph 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 ...

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