• “Substantial Compliance” With Notice Requirements Not Enough
  • April 22, 2014 | Author: Adam Keith Butman Brandon
  • Law Firm: Rogers Towers, P.A. - Ponte Vedra Beach Office
  • Florida’s Fifth District Court of Appeal recently emphasized the need for lenders to strictly comply with the notice requirements of a mortgage prior to foreclosure. In Samaroo v. Wells Fargo, the borrower appealed the circuit court’s entry of a summary final judgment of mortgage foreclosure. Finding that the bank failed to strictly comply with all of the notice requirements contained in the mortgage, the 5th DCA ruled against the bank and overturned the foreclosure judgment.

    Before it initiated the litigation, the bank sent a demand letter to inform the borrower that the loan was in default and that the bank elected to accelerate the loan. The letter further informed the borrower that partial payments would not cure the default. However, the letter failed to explicitly mention that the borrower had the right to reinstate the loan after acceleration. This omission was a problem because the mortgage stipulated that any notice of default must inform the borrowers of the right to reinstate their loan after acceleration.

    The bank suggested on appeal that its default letter “substantially” complied with the notice requirements of the mortgage. However, the 5th DCA rejected this argument because the bank’s own mortgage specified all of the important information to be provided to a borrower in default. In seeking to foreclose the mortgage, the bank itself could not provide any notice less than what the mortgage required.

    This particular case began in April 2009. However, the 5th DCA’s ruling means that the bank must restart the foreclosure process five years after it began. Lenders and their counsel cannot be too careful about complying with the notice provisions provided by their own loan documents.