Thursday, June 23, 2011

Foreclosure Judgment Reversed Because Lender Did Not Establish That Notice Of Default Was Sent

In Valencia v. Deutsche Bank National Trust Company (4D09-3297), the Fourth District reversed a summary judgment in favor of the lender because the lender failed to establish that it had provided notice of default to the borrower prior to filing suit. The Court stated:
For some reason, the lender had not retained a hard copy of the letter notifying the borrowers of the default, but instead produced two possible letters that could have been sent. Both letters contained a cure date of October 8, 2003. Although the original letter was found by appellants after the summary judgment hearing, it contained a different date and different amount owed.
In this case, the Court reversed the judgment and held that:
The burden is on the moving party for summary judgment to show conclusively the complete absence of any genuine issue of a material fact. Id. The date of default alleged in the complaint and the dates referred to in the “cure letters” are not identical. This creates, by definition, a genuine issue of a material fact. 


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