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Zervas v. Wells Fargo Bank, N.A.

Florida District Court of Appeal
93 So.3d 453 (2012)


Facts

Anastasios and Dina Zervas (defendants) bought real property with a mortgage-secured loan from Fremont Investment and Loan (Fremont). The mortgage contained a standard acceleration clause. The clause provided that, in case of any default and before instituting a foreclosure action, the mortgage-note holder had to notify and give the mortgagor at least 30 days to cure the default. In June 2009, the Zervases stopped making mortgage payments, and in October 2009 Wells Fargo Bank, N.A. (the bank) (plaintiff) took the Zervases to court. The bank's complaint generally alleged that it had complied with all conditions precedent to the filing of its suit, but neither the complaint nor the evidence specifically addressed the bank's compliance with the acceleration clause. Although the bank claimed to have received the mortgage note pursuant to Fremont's assignment, the bank initially claimed that it had lost the note, and it was not until July 2010 that the bank produced the note and submitted it to the trial court. The note carried Fremont's blank endorsement. On August 2, 2010, the trial court granted the bank's motion for summary judgment. On August 12, 2010, the Zervases answered the bank's complaint and moved to set aside the summary judgment, on the grounds that the bank failed to prove it had complied with the mortgage's acceleration clause or that it had standing to sue. The Zervases appealed the trial court's entry of summary judgment to the Florida District Court of Appeal.

Rule of Law

Issue

Holding and Reasoning (Whatley, J.)

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