Opinion
3D22-0285
01-11-2023
Corey McIntosh, Appellant, v. U.S. Bank National Association, etc., Appellee.
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.
Not final until disposition of timely filed motion for rehearing.
An appeal from the Circuit Court for Monroe County, Bonnie J. Helms, Judge. Lower Tribunal No. 18-471-K
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.