BANK OF NEW YORK, ETC., APPELLANT,
v.
LUISA E. MIESES, APPELLEE
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Bank of New York appeals summary judgment granted to borrower Luisa Mieses in a foreclosure case. The trial court found the lender failed to comply with mortgage paragraph twenty-two's notice requirements, but the appellate court reversed, holding that the lender's default notice substantially complied with the contractual obligation.
The court held that Bank of New York substantially complied with paragraph twenty-two's requirements. The default notice, though using slightly different language ('bring a court action' rather than 'assert in the foreclosure proceeding'), substantially complied with the mortgage's notice conditions precedent.
[1] A lender's default notice to a borrower must substantially comply with the conditions precedent set forth in the mortgage agreement.
[2] A default notice that informs a borrower of the right to bring a court action to assert defenses substantially complies with a mortgage provision requiring notice of the…
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Join FLexlaw to unlock all legal intelligence“a lender's default notice to the borrower must only substantially comply with the conditions precedent set forth in the mortgage.”
Establishes the governing legal standard for evaluating default notice compliance with mortgage terms.
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Join FLexlaw to unlock all legal intelligenceMieses executed a mortgage containing paragraph twenty-two, which required the lender to give notice prior to acceleration following breach. Following…
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■ Bank of New York appeals a final summary judgment entered in favor of Luisa E. Mieses (“Mieses”) in this foreclosure case. The trial court granted summary judgment upon a finding that Bank of New York failed to comply with paragraph twenty-two of the mortgage agreement. Upon our de novo review, we find that Bank of New York substantially complied with the requirements of paragraph twenty-two, and therefore, reverse the trial court’s summary judgment order and remand for further proceedings.
Paragraph twenty-two of the mortgage executed by Mieses provided, in pertinent part:
Acceleration; Remedies. Lender shall ■give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument.-... The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure.
Following an alleged default, the lender sent: Mieses á default notice, informing her:
If the' default is hot cured on or before October 16, 2008,' the mortgage payments will be accelerated with the full "amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time.... You may, if required by law or your loan documents, have the right to cure the default after the acceleration of the mortgage payments and prior to the foreclosure sale of your property if all amounts past due are paid *920within the time permitted by law.... Further, you may have the right to bring a court action to assert the nonexistence of a default or any other defense you may have to acceleration and foreclosure.
The trial court found that Bank of New York’s default notice failed to comply with paragraph twenty-two of the mortgage agreement because it advised Mieses only that she could “bring a court action,” not that she had the right to “assert in the foreclosure proceeding” the non-existence of default or any other defense to acceleration and foreclosure. We hold that the trial court erred in this determination.
This court recently held that a “lender’s default notice to the borrower must only substantially comply with the conditions precedent set forth in the mortgage.” Bank of New York Mellon v. Nunez, 180 So.3d 160, 163 (Fla. 3d DCA 2015). The language of paragraph twenty-two and the default notice in Nunez is identical to the language of paragraph twenty-two and the default notice in the instant case. In Nunez, we reversed the trial court’s order of involuntary dismissal, holding that the default notice substantially complied with paragraph twenty-two of the mortgage.
The facts and holding of Nunez are on all fours with the case before us. See also SunTrust Mortg. Inc. v. Garcia, 41 Fla. L. Weekly D384, 2016 WL 538618 (Fla. 3d DCA Feb. 10, 2016) (reversing final summary judgment and holding, on appellee’s confession of error, that the language of the default notice (containing identical language to that in the instant case) substantially complied with paragraph twenty-two of the mortgage); Bank of America v. Cadet, 183 So.3d 477, 478 (Fla. 3d DCA 2016); Bank of New York Mellon v. Johnson, 185 So.3d 594 (Fla. 5th DCA 2016); Green Tree Servicing, LLC v. Milam, 177 So.3d 7 (Fla. 2d DCA 2015).1
Accordingly, because we find, as in Nunez, that the default notice substantially complied with paragraph twenty-two of Mieses’ mortgage, we reverse the final summary judgment and remand for further proceedings.
REVERSED AND REMANDED.
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Nowlin v. Nationstar Mortg., LLC, 193 So. 3d 1043 (Fla. 2d DCA 2016)…se' contained in the mortgage. On the authority of Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015), reh’g denied, (Oct. 13, 2015); Ortiz v. PNC Bank, National Ass'n, 188 So. 3d 923 (Fla. 4th DCA 2016); Bank of New York v. Mieses, 187 So. 3d 919 (Fla. 3d DCA 2016); and Bank of New York Mellon v. Johnson, 185 So. 3d 594 (Fla. 5th DCA 2016), we affirm the trial court’s ruling as to the second issue without further discussion. We agree with the Nowlins that the trial court erred in entering a…
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Wells Fargo Bank, N.A. v. Hernandez & Silva Enters., Inc., 193 So. 3d 67 (Fla. 3d DCA 2016)…tice complied with Paragraph 22 of the mortgage, the default notice provision. , We have'held'that a mortgagee’s default notice is sufficient if it substantially com [*68] plies with the mortgage’s default notice provision. Bank of N.Y. v. Mieses, 187 So. 3d 919 (Fla. 3d DCA 2016); SunTrust Mortg., Inc. v. Garcia, 186 So. 3d 1036 (Fla. 3d DCA 2016); Bank of Am. v. Cadet, 183 So. 3d 477, 478 (Fla. 3d DCA 2016) (Mem); Bank of N.Y. Mellon v. Nunez, 180 So. 3d 160, 162 (Fla. 3d DCA 2016). The trial court applie…
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The Bank OF NEW York Mellon v. Bloedel, 197 So. 3d 147 (Fla. 2d DCA 2016)…se law applying a substantial compliance analysis to the paragraph twenty-two notice requirements, we find that the default notice in this case substantially complied [*148] with paragraph twerity-two of the mortgage. See Bank of New York v. Mieses, 187 So. 3d 919 (Fla. 3d DCA 2016); Bank of New York Mellon v. Johnson, 185 So. 3d 594 (Fla. 5th DCA 2016), Accordingly, we reverse the final judgment denying foreclosure and remand for further proceedings. Reversed and remanded. WALLACE and CRENSHAW, JJ., Concur…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015)
- Bank OF NEW York Mellon v. Nunez, 180 So. 3d 160 (Fla. 3d DCA 2015)
- The Bank OF NEW York Mellon v. Johnson, 185 So. 3d 594 (Fla. 5th DCA 2016)
- Bank OF Am. v. Francois Claude Cadet, 183 So. 3d 477 (Fla. 3d DCA 2016)