- In yet another appellate decision on conditions precedent, the Florida Court of Appeals for the Second District overturned a decision of the Circuit Court for Charlotte County. The decision is:
Konsulian v. Busey Bank, N.A, No. 2D10-2163 (Fla. App. 2nd Dist. June 1, 2011.)
- I would expressly note that litigants in other states might want to take particular note of conditions precedent cases in other jurisdictions where the express language of the mortgage provision is given. [emphasis in the original] In many instances, this language is uniform across jurisdictions. While an out of state case may NOT be authoritative in YOUR jurisdiction, the case is more influential when the facts are IDENTICAL.(1)
Representing the homeowner was attorney Gregg Horowitz, Sarasota, Florida.
Editor’s Note: A question remaining unanswered is whether the defect in this case makes the foreclosure judgment absolutely void (ie. void ab initio), or merely voidable??? My guess is that in this case, the property has not yet been sold at a foreclosure sale so that the rights of downstream, innocent 3rd party purchasers are not involved. In such a case, the distinction between void and voidable may not need to be addressed.
However, had the property been sold at a foreclosure sale, with title ending up (either as a result of the foreclosure sale, or a subsequent conveyance by a title-taking lender) in the hands of a 3rd party purchaser, the void-voidable determination becomes crucial in assessing the rights of such a purchaser. See Bay State High Court Hears ‘Ibanez’ Follow-Up Case Involving Unwitting 3rd Party Buyer Who Purchased Void Title On Improperly Foreclosed Home for an example of such a problem currently being considered in Massachusetts by the state Supreme Judicial Court (the state’s highest court).
(Given the nature of the defect in the foreclosure action at the center of the Florida case Konsulian v. Busey Bank, N.A (which is significantly different than the nature of the foreclosure defect in the Massachusetts case), I’ll shoot from the hip, take a wild guess and say the judgment in the Florida case would probably be found to be merely voidable, not void ab initio, in which case a 3rd party purchaser’s rights would be unaffected by the voiding of the judgment – provided, of course, the 3rd party purchaser otherwise qualifies as a bona fide purchaser).
(1) From the appellate court’s ruling, reversing the earlier ruling of Charlotte County Circuit Court Judge George Richards (bold text is my emphasis):
- Here, nothing in Busey’s complaint, motion for summary judgment, or affidavits indicates that Busey gave Konsulian the notice which the mortgage required. The language in the mortgage is clear and unambiguous. The word “shall” in the mortgage created conditions precedent to foreclosure, which were not satisfied. See Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009).
Under Florida law, contracts are construed in accordance with their plain language, as bargained for by the parties. Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). Further, Busey did not refute Konsulian’s defenses nor did it establish that Konsulian’s defenses were legally insufficient.
Because Busey did not prove that it met the conditions precedent to filing for foreclosure, it failed to meet its burden, and it is not entitled to judgment as a matter of law.
Reversed and remanded.