February 6, 2013
by Robert Schneider
Ronald R. Wolfe & Associates, PL – USFN Member (Florida)
After the recent opinion by the Second District Court of Appeal, lenders can expect another impediment to promptly completing foreclosure actions. [Judy LLC v. MSMS Venture LLC, WL 5935651 (Fla. Dist. Ct. App. Nov. 28, 2012)]. At issue in Judy was a defense that has been frequently raised in the last year or so in Florida. Defense attorneys have attempted to argue that the language in the letters meant to satisfy the notice of default/notice of intent to accelerate requirement under the mortgage (usually paragraph 22) is not sufficient.
In Judy, the court ruled that a summary judgment should be overturned because the plaintiff did not overcome an affirmative defense alleging the demand letter/notice of default was insufficient to satisfy the applicable notice requirement under the subject mortgage. The notice in that case did not specify the default and generally referred to the fact that there had been a default.
While the letter in Judy was devoid of any reference to what the default was, the appellate court’s holding in the case still warrants some cause for concern. Defendants will argue that notices of default do not contain, word for word, the language in the mortgage such that the borrower would be properly informed of his right to assert defenses in the lender’s foreclosure proceeding. The argument goes on to contend that due to the fact the language in the letter does not exactly match the language contained in the mortgage, the notice of default requirement has not been satisfied. By failing to fully satisfy this condition, the court may view the action as improvidently filed, forcing the lender to dismiss its case. The lender’s only option would then be to send out a new notice of default letter, utilizing the exact language set forth in the mortgage.
Despite the decision in Judy, all hope is not lost for actions where letters without precise language were sent to comply with the paragraph 22 notice. This author’s firm and others have been successful in the majority of the cases where this defense has been raised by pointing out that the language used in such letters is in substantial compliance with the language contained in the mortgage, and thus the requirement and condition precedent have been satisfied. While no foreclosure-specific opinion in Florida has been rendered to support this stance, there is a large body of Florida contract law to support the position. The recent opinion in Judy, however, will unavoidably make unfavorable rulings more likely.
Defense counsel will attempt to use the Judy case to support their position that the notices of default must be in strict compliance with the language used in the notice requirement under the mortgage. As a result, it’s advisable that future notices of default be revised to match the exact wording of the notice requirement under the mortgage. To cure a related attack as to the number of days of notice provided in the notice of default letters, it is also advisable that the date indicated by which to cure the default be 35 days from the date on the letter versus 30 days. The additional five days will allow for delays that may be experienced between the letter being generated and the letter being mailed out, and should negate an argument that a full 30-day period to cure has not been provided.
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