Defective notice did not prejudice the borrowers, as they did not attempt to cure the default.
On March 7, 2018, the Fourth District Court of Appeal in Citigroup Mortg. Loan Tr. Inc. v. Scialabba, No. 4D17-401, 2018 WL 1181020, (Fla. Dist. Ct. App. Mar. 7, 2018), held that “even if we concluded that the required notice was mailed to the incorrect address (address listed in loan modification agreement), the Bank correctly points out that the defective notice did not prejudice the Borrowers, as they did not attempt to cure the default.” The Court also held that from the record of appeal, the modification agreement was admitted into evidence, as it was attached to the complaint. The trial court never ruled that it did not consider the modification agreement to be in evidence or that it was inadmissible hearsay. The Fourth District Court of Appeal noted in a footnote, that the issue of whether a copy of the modification agreement attached to the certified copy of the complaint met the requirements of Section 90.953 was not addressed, as it was not adequately addressed in the briefs.
Where mortgagee had sent default letter to mortgagors prior to the dismissal of initial complaint with leave to amend, mortgagee were not required to send a new default letter after amending complaint to state a new default date.”On March 7, 2018, the Third District Court of Appeal in *Nationstar Mort., LLC v. Silva, No. 3D16-1936, 2018 WL 1177360, (Fla. Dist. Ct. App. Mar. 7, 2018), held that “where Mortgagee had sent default letter to mortgagors prior to the dismissal of initial complaint with leave to amend because action was barred by statute of limitations, mortgagee was not required to send a new default letter after amending complaint to state a new default date.” Facts surrounding this decision, Appellees, stopped paying their mortgage in February 2009, Nationstar sent a letter to them on April 6, 2009, letting them know about the default, the amount they owed, and how to cure it.
On March 21, 2014, Nationstar filed a foreclosure complaint against the Appellees, the Complaint alleged a default date of February 1, 2009. Appellees moved to dismiss the complaint because the complaint was barred by the five year statute of limitations. The trial court dismissed the complaint, but allowed an amendment by interlineation to allege a default within five years of filing the Complaint. Nationstar, amended by interlineation, amending the complaint to reflect a default date of March 21, 2009 instead.” At trial, the Appellee’s moved for an involuntary dismissal arguing the complaint failed to state a cause of action because the default letter did not correspond to the default date in the amended complaint. The trial court entered a final order in favor of the Appellee’s and dismissed the case.
In reversing and remanding for further instructions, the Third District Court of Appeal stated that “the evidence from the bench trial showed that the demand letter complied with paragraph 22 of the Mortgage, and even if it didn’t, the Appellee’s were not prejudiced by the discrepancy in the default date. The Court went onto to further state paragraph twenty-two provided that if the default was not cured—and the evidence was clear that it was not, Nationstar could accelerate “without further demand” and foreclose on the home. Accordingly, as long as the default was not cured, and the Silvas did not pay, Nationstar was not required to send another default letter before accelerating the mortgage and proceeding with the foreclosure.
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