In Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696 (Fla. 4th DCA 2012), the Fourth District reversed a foreclosure summary judgment because the lender never proved that it sent the pre-suit notice of default required by paragraph 22 of the mortgage. The opinion is a useful reminder that a bare allegation in the complaint that “all conditions precedent have occurred” is not evidence, and that a plaintiff who moves for summary judgment before the borrower answers carries a heightened burden.
The full opinion is available on CourtListener. Case No. 4D11-1854, decided December 5, 2012 (Taylor, J.; Damoorgian, J., and Corlew, Associate Judge, concurring).
(a) Facts
Parties. Eugene J. Dominko, the borrower, was the defendant below and the appellant. Wells Fargo Bank, N.A., the mortgagee, was the plaintiff below and the appellee.
What happened. In February 2010, Wells Fargo filed a mortgage foreclosure complaint alleging that it held the note and mortgage, that Dominko was in default, and that all conditions precedent to acceleration had occurred. Dominko never filed an answer, and Wells Fargo never moved for a default.
Procedural history. In April 2010, Wells Fargo moved for summary judgment. It later filed the original note, endorsed in blank, and an Amended Affidavit as to Amounts Due and Owing. The affidavit said nothing about conditions precedent. In November 2010, Dominko filed his own motion for summary judgment arguing that the suit should be dismissed because Wells Fargo had not complied with the pre-suit notice requirement in the mortgage’s acceleration clause, but he never set that motion for hearing. In April 2011 he filed an opposition to Wells Fargo’s motion without any supporting affidavits.
Judgment. After a hearing, the trial court granted Wells Fargo’s foreclosure summary judgment motion and entered a final judgment of mortgage foreclosure. Dominko appealed.
(b) Issues
Whether the trial court erred in entering a foreclosure summary judgment where the borrower had not answered, no default had been entered, and the record contained no evidence that the lender complied with the thirty-day notice-and-cure requirement in paragraph 22 of the mortgage.
(c) Holding
Reversed and remanded. A lender that moves for summary judgment before the defendant answers must establish not only that no genuine issue of material fact exists on the record as it stands, but also that the defendant could not raise a genuine issue if permitted to answer. Because Wells Fargo’s motion and affidavit never addressed the paragraph 22 notice, it failed to carry that burden and the foreclosure summary judgment could not stand. The court added that nothing in its opinion precluded a renewed motion on a more fully developed record.
(d) Rationale
Standard of review. An order granting a foreclosure summary judgment is reviewed de novo, and the movant must conclusively show the complete absence of any genuine issue of material fact. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Albelo v. Southern Bell, 682 So. 2d 1126 (Fla. 4th DCA 1996).
The pre-answer “difficult burden.” Because Dominko had not answered and no default had been entered, Wells Fargo faced what the court, quoting Goncharuk v. HSBC Mortgage Services, Inc., 62 So. 3d 680 (Fla. 2d DCA 2011), called a “difficult burden.” On a foreclosure summary judgment motion filed before the answer, the plaintiff must essentially anticipate the content of the defendant’s answer and show that the record would present no genuine issue even if that answer were already on file. Sandoro v. HSBC Bank USA, N.A., 55 So. 3d 730 (Fla. 2d DCA 2011).
Allegation is not proof. Wells Fargo’s general allegation that all conditions precedent had occurred was not evidence. Nothing in the record showed compliance with paragraph 22, and the supporting affidavit was silent on the point. Following Zervas v. Wells Fargo Bank, N.A., 93 So. 3d 453 (Fla. 2d DCA 2012), the court held that a lender does not establish the absence of a genuine issue where it fails to address the notice of acceleration in its motion or affidavits.
Consistent authority. The court also relied on its own decision in Finnegan v. Deutsche Bank National Trust Co., 96 So. 3d 1093 (Fla. 4th DCA 2012), and on Goncharuk and Sandoro, each of which reversed a foreclosure summary judgment where the lender’s motion and affidavits did not address pre-suit notice. Having reversed on this ground, the court did not reach Dominko’s alternative arguments.
Practice Note: Proving Conditions Precedent on Foreclosure Summary Judgment
For lenders. Before moving for foreclosure summary judgment, attach the paragraph 22 default letter to the complaint or the summary judgment affidavit, and have an affiant with personal knowledge (or a qualified business-records custodian) swear to its mailing. An affidavit limited to amounts due and owing will not close the gap.
For borrowers. Lack of pre-suit notice should be pleaded specifically and with particularity as an affirmative defense under Rule 1.120(c), and raised again in opposition to the foreclosure summary judgment motion. Dominko shows that even an unanswered complaint does not relieve the lender of its burden, but a borrower should never rely on that.
A caveat on the standard. Dominko was decided under Florida’s former summary judgment standard. Effective May 1, 2021, Rule 1.510 was amended to adopt the federal standard, and the “no genuine issue could ever be raised” formulation from the pre-answer cases should be read in that light. The core lesson survives: the movant must come forward with record evidence on every element, including compliance with conditions precedent. For a related discussion of foreclosure timing issues, see our summary of Bartram v. U.S. Bank.
Bottom line. The failure in Dominko was not a defective complaint but a defective record. The lender pleaded conditions precedent generally, which Rule 1.120(c) permits, but then offered nothing at the summary judgment stage to prove the paragraph 22 letter was sent. When the borrower has not answered, the lender must foreclose every defense the borrower could raise; when the borrower has answered and denied notice with particularity, the lender must rebut that denial with competent evidence. Either way, a foreclosure summary judgment package should include the default letter, proof of mailing, and an affidavit that speaks to both.
Cox Law, PLLC handles civil litigation, including mortgage and real property disputes, throughout the Tampa Bay area. To discuss a foreclosure summary judgment motion or appeal, call 813-685-8600 or contact us online.