In Brooks, the trial court granted summary judgment of
foreclosure, even though the borrowers had asserted a legally
sufficient affirmative defense of failure to comply with the
requirements of paragraph 22 of the mortgage, which required notice
of intent to accelerate and an opportunity to cure. However,
because the lender had failed to establish by summary judgment
evidence that it had sent the required notice, the appellate court
reversed the final judgment.
Brooks should serve as a reminder to lenders that they
must submit correspondence that satisfies any notice requirement or
state in an affidavit that any required notice was provided.
Failure to do so leaves a disputed issue of material fact and
precludes entry of summary judgment.
When a borrower asserts an affirmative defense of failure to
satisfy the condition precedent of providing notice and an
opportunity to cure, a lender seeking summary judgment of
foreclosure must remember to "Say it Ain't So"
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