Sunday, February 21, 2016

FYI: Fla App Ct (4th DCA) Holds New Notice of Default Not Required After Voluntary Dismissal of Prior Foreclosure

The District Court of Appeal of the State of Florida, Fourth District, recently affirmed a final judgment of foreclosure in plaintiff mortgagee's favor, holding that the plaintiff mortgagee was not required to send a second notice of default after it voluntarily dismissed its first foreclosure action before filing the second foreclosure action.


A copy of the opinion is available at:  Link to Opinion  


In April of 2007, the borrower signed a promissory note and mortgage securing the loan, but defaulted on July 1, 2009. Pursuant to paragraph 22 of the mortgage, the mortgagee sent a notice of default on August 28, 2009 warning that borrower had 30 days to cure the default or the loan would be accelerated. 


The borrower failed to cure the default and the mortgagee filed a foreclosure action in October of 2009. The mortgagee then voluntarily dismissed the case, but six weeks later, filed a second foreclosure action based on the same default.


The trial court entered a final judgment of foreclosure, which the borrower appealed.  On appeal, the Appellate Court disagreed with the borrower's argument that the mortgagee was required to send a second notice of default before filing the second foreclosure action.


First, the Appellate Court cited the Fifth District Court of Appeal's 1998 decision in Kuper v. Perry, which involved a pre-suit notice required by Florida's sovereign immunity statute, where the First District held that a second notice as not required after the first suit was voluntarily dismissed before filing suit again because the complaints involved the same facts, parties and causes of action, and thus "there was no practical purpose in requiring an additional notice."


The Appellate Court then cited its own recent 2015 decision, Schindler v. Bank of N.Y. Mellon Trust Co., which held that "a borrower is entitled to a new notice before the second complaint is filed … where the dismissal of the first complaint was an adjudication on the merits."


The Court reasoned that in the case at bar "the first complaint was voluntarily dismissed without prejudice, and thus was not an adjudication on the merits and the second complaint was premised on the same July of 2009 default, and, as in the Fifth District Kuper ruling, "involved the same facts, relief, claimants, causes of action, and allegations."


Because the mortgagee filed the second foreclosure action "less than two months after it voluntarily dismissed the first suit…," the borrower did not make any payments between the 2009 notice of default and the filing of the second complaint in 2013 and the "mortgage does not require that a new notice of default be sent," the Appellate Court held that the first notice of default "remained valid and a second notice of default was not required before filing the second complaint based on the same default."


Accordingly, the final judgment of foreclosure was affirmed.    





Ralph T. Wutscher
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