DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE REGISTERED HOLDER OF MORGAN STANLEY HOME EQUITY LOAN TRUST 2007-2 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-2, APPELLANT,
v.
V. DAVID FAIRBANKS, JR., AND DENISE FAIRBANKS, APPELLEES
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Deutsche Bank appealed a trial court's dismissal of a foreclosure action, arguing the court erred in finding that the bank's notice of default failed to comply with the mortgage's notice requirements. The appellate court reversed, holding that the notice substantially complied with the mortgage terms even though it did not explicitly state that foreclosure could result in a sale of the property.
The court held that the notice substantially complied with paragraph twenty-two because the failure to specify that foreclosure could result in a sale was only a minor variation from the mortgage language that did not go to the essence of the parties' bargain. A notice letter that varies in only immaterial respects from what the mortgage requires satisfies the substantial compliance standard.
[1] A notice of default substantially complies with a mortgage provision requiring specific information if any variations from the required content are immaterial and do not…
[2] A notice of default adequately informs a borrower that foreclosure may result from failure to cure a default, even if it does not explicitly state that foreclosure may re…
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Join FLexlaw to unlock all legal intelligence“[W]hen the content of a lender's notice letter ... varies in only immaterial respects from what the mortgage requires, the letter substantially complies, and a minor variation from the terms of paragraph twenty-two should not preclude a foreclosure action.”
Establishes the substantial compliance standard applicable to notice requirements in foreclosure actions
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Join FLexlaw to unlock all legal intelligenceDeutsche Bank, as trustee, initiated a foreclosure action against the Fairbankses for breach of their mortgage. The trial court dismissed the action w…
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Deutsche Bank National Trust Company appeals the order dismissing its foreclosure action without prejudice. The trial court’s dismissal was based on its determination that the Bank failed to comply with paragraph twenty-two of the mortgage because the Bank’s notice of default did not specify that failure to cure the default may result in sale of the property.1 Paragraph twenty-two of the mortgage provides, in pertinent part:
Lender shall give notice to Borrower prior to acceleration following Borrower’s breach .... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property-
The relevant portion of the notice at issue informed the Fairbankses that the “[failure to bring [their] account current may result in [the lender’s] election to exercise [its] right to foreclose on [the] property.”
“[W]hen the content of a lender’s notice letter ... varies in only immaterial respects from what the mortgage requires, the letter substantially complies, and a minor variation from the terms of paragraph twenty-two should not preclude a foreclosure action.” Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 14-15 (Fla. 2d DCA 2015). Contrary to the Fairbankses’ argument on appeal, the notice did not “omit[ ] an entire element” of paragraph twenty-two simply because it did not specify that foreclosure may result in a sale. Per sub-part (d) of paragraph twenty-two, the notice adequately informed the Fairbankses that the failure to cure , the default could result in foreclosure. The failure to specify that foreclosure could result in a sale was a minor variation from the language in paragraph twenty-two that did not “go[] to the essence of the parties’ bargain.” Green Tree, 177 So.3d at 15. Because the notice substantially complied with paragraph twenty-two, we reverse and remand for further proceedings.
Reversed and remanded.
KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur.
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Citator
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U.S. Bank v. Adams, 219 So. 3d 211 (Fla. 2d DCA 2017)…y.” < We conclude that this 'notice was sufficient to inform the Adamses that their failure to cure the default could result in foreclosure despite its failure to state that the property might be sold. See Deutsche Bank Nat’l Trust Co. v. Fairbanks,212 So. 3d 490, 491 (Fla. 2d DCA 2017) (“The failure to specify that foreclosure could result in a sale was a minor variation from the language in paragraph twénty-two that did not ‘go[ ] to thé essence of the parties’ bargain.’ ” (alteration in original) (quoting…
Authorities Cited
- Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015)