Factual Differences in the Complaint and Cure Letters in a Foreclosure Proceeding Preclude Summary JudgmentMonday, August 1st, 2011
Valencia v. Deutsche Bank National Trust Company, 4D09-3297
June 22, 2011
The Fourth District addressed an appeal of an order granting summary final judgment in favor if the lender in a foreclosure proceeding. The complaint had alleged December 1, 2003 as the date of the borrower’s default. The mortgage required that the lenders provide the borrowers written notification of the default that included the action necessary to cure the default, and gave the borrowers thirty days to comply. The lenders were unable to produce a hard copy of the letter that was actually sent to the borrowers. Instead, the lenders produced two possible letters that could have been sent to the borrower. Both letters contained a cure date of October 8, 2003. The actual letter was found by the borrowers after the summary judgment hearing. It contained a different cure date and a different amount owed than the complaint and the two hard copies produced by the lender. The Fourth District held that there was a genuine issue of material fact because of these differences, and reversed the order of summary judgment.