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Cohen v. U.S. Bank Tr., N.A.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
Jun 2, 2021
317 So. 3d 1163 (Fla. Dist. Ct. App. 2021)

Opinion

No. 4D20-392

06-02-2021

Adi COHEN, Appellant, v. US BANK TRUST, N.A., AS TRUSTEE FOR LSF11 MASTER PARTICIPATION TRUST, et al., Appellees.

Kenneth Eric Trent, Fort Lauderdale, and Richard G. Chosid of Law Offices of Richard G. Chosid, Fort Lauderdale, for appellant. Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for appellee US Bank Trust, N.A., as Trustee for LSF11 Master Participation Trust.


Kenneth Eric Trent, Fort Lauderdale, and Richard G. Chosid of Law Offices of Richard G. Chosid, Fort Lauderdale, for appellant.

Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for appellee US Bank Trust, N.A., as Trustee for LSF11 Master Participation Trust.

Per Curiam.

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.

Gross, Gerber and Klingensmith, JJ., Concur.


Summaries of

Cohen v. U.S. Bank Tr., N.A.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
Jun 2, 2021
317 So. 3d 1163 (Fla. Dist. Ct. App. 2021)
Case details for

Cohen v. U.S. Bank Tr., N.A.

Case Details

Full title:ADI COHEN, Appellant, v. US BANK TRUST, N.A., as Trustee for LSF11 Master…

Court:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Date published: Jun 2, 2021

Citations

317 So. 3d 1163 (Fla. Dist. Ct. App. 2021)