KABOOM | FL 2nd DCA Judgment Reversed – SARKIS KONSULIAN v B– USEY BANK, N.A. (Conditions Precedent Issue)

This might cause some major problems for the banksters. The reason I say this is because I have seen this defect in most cases. When the Foreclosure Mills file the lawsuit, they attach the acceleration letter as part of the complaint or file it at the same time of the complaint where the homeowner see it for the first time. The opinion below destroys that method…

From the opinion…

SARKIS KONSULIAN,

Appellant,

v.

B– USEY BANK, N.A. AS SUCCESSOR IN
INTEREST BY ACQUISITION OF
TARPON COAST NATIONAL BANK,

Appellee.

On appeal, Konsulian argues that Busey failed to meet a condition precedent to the filing of the complaint. Specifically, Konsulian asserts that Busey filed suit prematurely, giving Konsulian incomplete and inadequate notice and opportunity to cure. In addition to being prematurely filed, Konsulian claims that the acceleration letter failed to state the default as required by the mortgage terms. We agree and reverse.

On October 6, 2008, Busey sent a preacceleration letter to Konsulian. On October 9, 2008, only three days later, the bank filed a mortgage foreclosure action against Konsulian. However, pursuant to paragraph twenty-two of the mortgage, Busey was required to give Konsulian thirty days notice prior to filing suit. Paragraph twentytwo of Konsulian’s mortgage provides as follows:

22. Acceleration; Remedies. Lenders shall give
notice to the Borrower prior to acceleration following
Borrower’s breach of any covenant or agreement in this
Security Instrument (but not prior to acceleration under
Section 18 unless Applicable Law provides otherwise). The
notice shall specify: (a) the default; (b) the action required to
cure the default; (c) a date, not less than thirty (30) days
from the date the notice is given to Borrower, by which the
default must be cured; and, (d) that the failure to cure the
default on or before the date specified in the notice may
result in an acceleration of the sums secured by this Security
Instrument, foreclosure by judicial proceeding and sale of the
Property. The notice shall inform Borrower of the right to
reinstate after acceleration and the right to assert in the
foreclosure proceedings the non-existence of a default or
any other defense of Borrower to acceleration and
foreclosure. If the default is not cured on or before the date
specified in the notice, a Lender, at its option, may require
immediate payment in full of all sums secured by this
Security Instrument by judicial proceeding. Lender shall be
entitled to collect all expenses incurred in pursuing the
remedies provided in this Section 22, including, but not
limited to all attorneys’ fees and costs of title evidence.

Konsulian appropriately raised both the timeliness argument and the sufficiency of the acceleration letter argument in his affirmative defenses.

Full opinion below…

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4closureFraud.org

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SARKIS KONSULIAN v B– USEY BANK, N.A.

Comments
2 Responses to “KABOOM | FL 2nd DCA Judgment Reversed – SARKIS KONSULIAN v B– USEY BANK, N.A. (Conditions Precedent Issue)”
  1. Jason Werner says:

    The whore judges had nothing to do with that.

    For he shall give his angels charge over thee, to keep thee in all thy ways.
    Psalm 91:11

  2. Eugene Villarreal says:

    New Jersey’s six banks prima facia in Support……..100s of pages on a continuing snow job on the New Jersey Supreme Court andth rest of the complicit judges in foreclosure fraud circus.

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