WELLS FARGO BANK, N.A., APPELLANT,
v.
LISA G. GUESS AND MICHAEL S. GUESS, APPELLEES
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Wells Fargo appealed a trial court's dismissal of a mortgage foreclosure action based on alleged violations of statutory notice requirements and mortgage provisions. The Florida appellate court reversed, holding that the statutory notice requirement is not a condition precedent to foreclosure and that Wells Fargo substantially complied with the mortgage's acceleration notice requirements.
The statutory notice requirement in section 559.715 is not a condition precedent to foreclosure. Additionally, Wells Fargo substantially complied with paragraph 22 of the mortgage's acceleration notice requirements, as the default letter unambiguously complied with all but one requirement and substantially conveyed the information necessary to inform the borrowers of potential consequences of non-payment.
[1] A statutory notice requirement is not a condition precedent to mortgage foreclosure.
[2] A default letter sent by a lender substantially complies with mortgage acceleration provisions if it specifies the default, the action required to cure, a cure date, and…
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Join FLexlaw to unlock all legal intelligence“The notice requirement described in section 559.715, however, is not a condition precedent to foreclosure.”
Establishes the primary holding that statutory notice requirements do not bar foreclosure proceedings.
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Join FLexlaw to unlock all legal intelligenceWells Fargo initiated a mortgage foreclosure action against borrowers Lisa and Michael Guess. The trial court granted the Guesses' motion for summary …
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In this mortgage foreclosure action, Wells Fargo Bank, N.A. (Wells Fargo), appeals an order of dismissal entered in favor of the borrowers, Lisa and Michael Guess. The trial court granted Lisa Guess’s motion for summary judgment on the basis that Wells Fargo failed to comply with section 559.715, Florida Statutes (2012). The notice requirement described in section 559.715, however, is not a condition precedent to foreclosure. Brindise v. U.S. Bank Nat’l Ass’n, 183 So.3d 1215, 1221 (Fla. 2d DCA 2016). Accordingly, we reverse the trial court’s order granting summary judgment and the resulting dismissal and remand this case for further proceedings.
Guess argues that we should nonetheless affirm the trial court’s dismissal order on account of Wells Fargo’s failure to substantially comply with paragraph 22 of the mortgage, which provides, in pertinent part:
22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). 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 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.
We disagree. Wells Fargo filed an affidavit in response to Guess’s motion for summary judgment and attached a default letter that Wells Fargo had mailed to Guess. Although the default letter does not explicitly state that the property might be sold, the letter unambiguously complies with all other requirements of paragraph 22. The letter also states that the Guesses will lose *1016their interest in and rights to the property-in the event of foreclosure. On these facts, we are not persuaded that Wells Fargo failed to substantially comply with the requirements of paragraph 22 of the mortgage. See Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 15 (Fla. 2d DCA 2015).
Reversed and remanded.
VILLANTI, C.J., and NORTHCUTT, J., Concur.
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Citator
Cited By
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U.S. Bank v. Adams, 219 So. 3d 211 (Fla. 2d DCA 2017)…), review denied, No. SC16-300, 2016 WL 1122325 (Fla. Mar. 22, 2016). Consistent with Brindise, the Adamses’ defense of lack of notice under section 559.715 was legally insufficient to support a summary judgment. See Wells Fargo Bank, N.A. v. Guess, 213 So. 3d 1014, 1015, 2017 WL 421933 (Fla. 2d DCA Feb. 1, 2017); see also Young v. Nationstar Mortg., LLC, 205 So. 3d 790, 791 (Fla. 2d DCA 2016). The Adamses assert that U.S. Bank failed to preserve this argument for review by not adequately addressing it at the…
Authorities Cited
- Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015)
- Brindise v. U.S. Bank Nat'l Ass'n, 183 So. 3d 1215 (Fla. 2d DCA 2016)