final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Virginia
P. Stopa of the Stopa Law Firm, Tampa, for Appellant.
Michele L. Stocker of Greenberg Traurig, P.A., Fort
Lauderdale; Kimberly S. Mello and Danielle M. Diaz of
Greenberg Traurig, P.A., Tampa, for Appellee.
Chrzuszcz, "the Borrower," appeals the final
judgment of foreclosure in favor of Wells Fargo, "the
Bank." He argues the trial court erred by denying his
Motion for Involuntary Dismissal because the Bank failed to
comply with a condition precedent to foreclosure. We agree
and reverse and remand for entry of an involuntary dismissal.
1998, the Borrower executed an FHA fixed-rate promissory
note, paragraph 6(B) of which indicated acceleration would
only be permitted if the Lender followed Housing and Urban
Development, "HUD," regulations:
If the Borrower defaults by failing to pay in full any
monthly payment, then Lender may, except as limited by
regulations of the Secretary in the case of payment
defaults, require immediate payment in full of the
principal balance remaining due and all accrued interest.
Lender may choose not to exercise this option without waiving
its rights in the event of any subsequent default. In many
circumstances regulations issued by the Secretary will limit
Lender's rights to require immediate payment in full in
the case of payment defaults. This Note does not
authorize acceleration when not permitted by HUD
regulations. As used in this Note, "Secretary"
means Secretary of Housing and Urban Development or his or
regulation at issue in this case requires the Bank, prior to
initiating a foreclosure action, to either have a
face-to-face interview with the Borrower, or reasonably
attempt to do so:
b) The mortgagee must have a face-to-face interview with the
mortgagor, or make a reasonable effort to arrange such a
meeting, before three full monthly installments due on the
mortgage are unpaid. If default occurs in a repayment plan
arranged other than during a personal interview, the
mortgagee must have a face-to-face meeting with the
mortgagor, or make a reasonable attempt to arrange such a
meeting within 30 days after such default and at least 30
days before foreclosure is commenced . . . .
24 C.F.R. § 203.604(b) (2012).
2012, the Bank filed a verified complaint seeking to
foreclose the mortgage and recover the indebtedness under the
note as a result of the Borrower's default. The complaint
included a general claim that the Bank had satisfied all
conditions precedent to initiating suit: "[A]ll
conditions precedent, to acceleration of the subject loan and
foreclosure of the subject Mortgage, have been performed,
have occurred, or were waived." In response, the
Borrower filed an answer, asserting, "[s]pecifically,
and without limitation, [the Bank] failed to comply with the
requirements of the National Housing Act, 12 U.S.C. §
1701x(c)(5) and 24 C.F.R. 203.604, under which [the Bank] is
required to ...