COHEN v. US BANK TRUST AS TRUSTEE FOR LSF11 MASTER PARTICIPATION TRUST (2021)

In this residential mortgage foreclosure case, the borrower appeals from the circuit court's final summary judgment in the bank's favor, and from the circuit court's order denying the borrower's motion for rehearing. The borrower argues the circuit court erred in entering the final summary judgment because material issues of fact existed regarding whether the bank proved a prior servicer had mailed a default notice to the borrower as a condition precedent to suit.

We agree with the borrower's argument and reverse. Our decision in Ghani v. Deutsche Bank National Trust Co., 287 So. 3d 637 (Fla. 4th DCA 2020), is directly on point. Like the bank in Ghani, here the bank's only evidence that the prior servicer had mailed the default notice was an affidavit executed by its successor servicer's employee, whose affidavit did not at least facially demonstrate that the employee had sufficient personal knowledge of the prior servicer's practices of mailing default notices to establish that the prior servicer had mailed the default notice. Thus, factual questions remain regarding the bank's compliance with the condition precedent of having mailed a default notice.

Accordingly, we reverse the circuit court's final summary judgment, and remand for further proceedings.

Reversed and remanded for further proceedings.

Per Curiam.

Gross, Gerber and Klingensmith, JJ., Concur.