COREY MCINTOSH
v.
U.S. BANK NATIONAL ASSOCIATION, ETC.
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A bank that has entered into a valid modification agreement may only foreclose by alleging and proving a breach of that modification agreement, and summary judgment is improper when the summary judgment materials fail to address the modification agreement referenced in the complaint.
[1] A mortgagee that has entered into a valid modification agreement may foreclose only by alleging and proving a breach of the modification agreement; summary judgment is im…
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Join FLexlaw to unlock all legal intelligence“Having entered into a valid modification agreement, [a bank can] only foreclose by alleging and proving a breach of the modification agreement.”
Court's statement of the controlling legal principle governing foreclosure after modification agreements.
McIntosh was the borrower in a mortgage loan with U.S. Bank National Association as trustee. A binding modification agreement existed between the part…
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Opinion filed January 11, 2023. Not final until disposition of timely filed motion for rehearing.
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No. 3D22-0285 Lower Tribunal No. 18-471-K
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Corey McIntosh,
Appellant,
vs. U.S. Bank National Association, etc., Appellee.
An appeal from the Circuit Court for Monroe County, Bonnie J. Helms, Judge. Garcia Law Firm, Trial Attorneys, and Manuel E. Garcia, for appellant. Diaz Anselmo & Associates P.A., Kathleen Achille, and Adam A. Diaz (Fort Lauderdale), for appellee. Before SCALES, MILLER, and LOBREE, JJ. MILLER, J. Appellant, Corey McIntosh, challenges a final summary judgment of foreclosure rendered in favor of appellee, U.S. Bank National Association, Not in Its Individual Capacity but Solely as Trustee for RMAC Trust, Series 2016-CTT. On appeal, he contends summary judgment was improper because the motion and accompanying materials failed to account for a binding modification agreement. Because “[i]n the foreclosure context, a bank, ‘[h]aving entered into a valid modification agreement, . . . [can] only foreclose by alleging and proving a breach of the modification agreement,’” and, here, the operative complaint referenced the modification agreement, but the summary judgment materials did not, we are constrained to reverse and remand for further proceedings. Carus v. VRMTG Asset Tr., 327 So. 3d 937, 938 (Fla. 3d DCA 2021) (second and third alterations in original) (quoting Nowlin v. Nationstar Mortg., LLC, 193 So. 3d 1043, 1046 (Fla. 2d DCA 2016)); see also Kuehlman v. Bank of Am., N.A., 177 So. 3d 1282, 1283 (Fla. 5th DCA 2015).
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McIntosh v. U.S. Bank Nat'l Ass'n, 327 So. 3d 937 (Fla. 3d DCA 2023)…reach of the modification agreement,’” and, here, the operative complaint referenced the modification agreement, but the summary judgment materials did not, we are constrained to reverse and remand for further proceedings. Carus v. VRMTG Asset Tr., 327 So. 3d 937, 938 (Fla. 3d DCA 2021) (second and third alterations in original) (quoting Nowlin v. Nationstar Mortg., LLC, 193 So. 3d 1043, 1046 (Fla. 2d DCA 2016)); see also Kuehlman v. Bank of Am., N.A., 177 So. 3d 1282, 1283 (Fla. 5th DCA 2015). Reversed and…
Authorities Cited
- Nowlin v. Nationstar Mortg., LLC, 193 So. 3d 1043 (Fla. 2d DCA 2016)
- Von Kuehlman v. Bank OF Am., N.A., 177 So. 3d 1282 (Fla. 5th DCA 2015)
- McIntosh v. U.S. Bank Nat'l Ass'n, 327 So. 3d 937 (Fla. 3d DCA 2023)