DALIA ISRAEL
v.
U.S. BANK NATIONAL ASSOC., ETC.
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This is an appeal from a foreclosure judgment where the defendant argues that the servicer failed to properly provide notice of default as required by the mortgage contract. The majority affirmed the foreclosure judgment, while Justice Warner dissented, arguing that the servicer's failure to comply with the notice requirement should have resulted in dismissal.
The majority affirmed the foreclosure judgment. Justice Warner dissented, arguing that the servicer's failure to comply with paragraph 22's notice requirement—a condition precedent to filing suit—should have resulted in dismissal of the foreclosure action.
[1] In a mortgage foreclosure action, a servicer must provide notice of default to the notice address specified in the mortgage, typically the property address, and failure t…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The 'breach letter' admitted into evidence did not meet the requirement in the mortgage to deliver the default notice to appellant at the 'notice address,' defined in the mortgage as 'the property address.'”
Dissent's citation to Blum v. Deutsche Bank Trust Co., explaining the standard for proper notice of default
The servicer sent a notice of default to a post office box address that was not listed in the mortgage and for which there was no evidence the defenda…
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Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Roger B. Colton, Judge; L.T. Case No. 50-2018-CA-005314-XXXX-MB.
Michael Jay Wrubel of Michael Jay Wrubel, P.A., Davie, for appellant. Kimberly S. Mello and Arda Goker of Greenberg Traurig, P.A., Orlando, for appellee U.S. Bank National Association, as Trustee, etc.
PER CURIAM. Affirmed. LEVINE and KLINGENSMITH, JJ., concur. WARNER, J., dissents with opinion. WARNER, J., dissenting.
I dissent from the affirmance of this foreclosure judgment. I would hold that the servicer failed to prove that it provided any notice of default pursuant to paragraph 22 of the mortgage. The facts of this case appear to be identical to those in Blum v. Deutsche Bank Trust Co., 159 So. 3d 920 (Fla. 4th DCA 2015), as the case was explained in Federal National Mortgage Association v. Hawthorne, 197 So. 3d 1237, 1240 (Fla. 4th DCA 2016):
In Blum, we reversed and remanded for entry of dismissal where “[t]he ‘breach letter’ admitted into evidence did not meet the requirement in the mortgage to deliver the default notice to appellant at the ‘notice address,’ defined in the mortgage as ‘the property address.’ ” Id. at 920–21. However, the record in Blum reflected that the plaintiff sent the default notice to a post office box not listed in the mortgage, and no evidence existed to indicate that the defendant had provided the post office box information to the plaintiff. Like Blum, the notice of default in this case was sent to a post office box address for which there was no evidence that the defendant provided that address to the servicer. The notice was returned unclaimed.
Failure to comply with paragraph 22, a condition precedent to filing suit, should have resulted in dismissal. See Blum, 159 So. 3d 920; Holt v. Calchas, LLC, 155 So. 3d 499, 507 n.4 (Fla. 4th DCA 2015). I would reverse.
* * * Not final until disposition of timely filed motion for rehearing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Holt v. Calchas, LLC, 155 So. 3d 499 (Fla. 4th DCA 2015)
- Blum v. Deutsche Bank Tr. Co., 159 So. 3d 920 (Fla. 4th DCA 2015)
- Fed. Nat'l Mortg. Ass'n v. Lambert Hawthorne, 197 So. 3d 1237 (Fla. 4th DCA 2016)