Third District Court of Appeal
State of Florida
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.
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