DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BANK OF AMERICA, N.A.,
Appellant,
v.
MARK L. JONES, ET AL.,
Appellees.
No. 4D19-1164
[March 25, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barry Stone, Judge; L.T. Case No. CACE12027301.
Nancy M. Wallace of Akerman LLP, Tallahassee, and William P. Heller
of Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP,
West Palm Beach, for appellant.
Bruce Botsford of Bruce Botsford, P.A., Fort Lauderdale, for appellees.
DAMOORGIAN, J.
Bank of America (“Bank”) appeals the involuntary dismissal of its
foreclosure action. We reverse and remand.
The Bank filed a foreclosure action against Mark and Ingrid Jones
(“Borrowers”). In response to the complaint, the Borrowers affirmatively
pled that the Bank failed to satisfy a condition precedent to foreclosure by
not conducting a face-to-face interview with the Borrowers pursuant to
24 C.F.R. § 203.604(b).
At trial, the Bank’s evidence established that after default but before
the Bank filed its foreclosure action, the Borrowers sent a cease and desist
letter to the Bank, demanding that the Bank cease all communication with
the Borrowers. The letter also stated that any contact by the Bank will
violate the Fair Debt Collection Practices Act (“FDCPA”) and subject the
Bank to liability for actual damages, statutory damages, and attorney’s
fees. Following receipt of the Borrowers’ cease and desist letter, the Bank
updated its system to not contact the Borrowers and did not proceed with
the face-to-face interview. The Borrowers moved for an involuntary
dismissal based on the Bank’s failure to conduct the face-to-face meeting.
The trial court granted the motion and dismissed the Bank’s complaint for
“fail[ing] to prove compliance with HUD regulations with respect to the face
to face meeting.” The trial court noted that otherwise the Bank proved its
case. This appeal follows.
An appellate court reviews an involuntary dismissal de novo. Deutsche
Bank Nat’l Tr. Co. v. Clarke,
87 So. 3d 58, 60 (Fla. 4th DCA 2012) (citing
Brundage v. Bank of Am.,
996 So. 2d 877, 881 (Fla. 4th DCA 2008).
Further, “[w]hen an appellate court reviews the grant of a motion for
involuntary dismissal, it must view the evidence and all inferences of fact
in a light most favorable to the nonmoving party.”
Id.
On appeal, the Bank argues that the Borrowers’ letter was a clear
expression that the Borrowers would not cooperate with the Bank to
conduct a face to face meeting, and it vitiated the requirement to conduct
a face to face meeting before filing the foreclosure action. We agree.
As a Federal Housing Administration (“FHA”) backed loan, the Bank’s
right to foreclose the mortgage was conditioned upon compliance with
24 C.F.R. § 203.604(b). The regulation provides that “[t]he mortgagee must
have a face-to-face interview with the mortgagor, or make a reasonable
effort to arrange such a meeting, before three full monthly installments
due on the mortgage are unpaid.” 24 C.F.R. § 203.604(b) (2019). However,
a face-to-face meeting is not required if “[t]he mortgagor has clearly
indicated that he will not cooperate in the interview.”
24 C.F.R. § 203.604(c)(3).
Although this appears to be a case of first impression in this Court, we
are guided in our decision by a case from an Illinois appellate court. In JP
Morgan Chase Bank N.A. v. Moore,
2015 WL 4640421 (Ill. App. Ct. Aug. 4,
2015), the bank sent the borrowers three letters informing them of their
default and provided a phone number to call to schedule the face-to-face
meeting.
Id. at *10. Instead of calling or contacting the bank, the
borrowers filed a federal lawsuit and a complaint with HUD against the
bank.
Id. The Illinois Appellate Court held that “[b]ased on the
communications (and, to some extent, the lack of communications)
between the parties after the . . . default, the record supports a finding
that the [borrowers] did not engage in acts consistent with an intent to
cooperate in a face-to-face interview with [the bank].”
Id.
Here, we conclude that the Borrowers’ cease and desist letter “can only
be interpreted as indicia of an unwillingness to commit to such a meeting.”
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Id. Simply put, the Bank’s understanding of the Borrowers’ demand was
reasonable—we do not want to engage in any further conversation with
you and if you contact us, we will sue you. To interpret the Borrowers’
own words as anything other than a clear expression that they will not
cooperate in an interview would place the Bank in an untenable situation
and would render the regulatory exception meaningless. See U.S. Bank
N.A. v. Stewart,
2006 WL 8453173, at *10 (Ohio Ct. Common Pleas Aug.
4, 2006) (finding that the bank was excused from conducting the face-to-
face meeting because “[t]he language used by [the borrower] . . .
throughout his correspondences to [the bank] indicate[d] that a face-to-
face interview with [the bank’s] representatives would not have resulted in
[the borrower] changing his position such that [he] would have cured his
default”); but see Derouin v. Universal Am. Mortg. Co.,
254 So. 3d 595, 602
(Fla. 2d DCA 2018) (holding that the homeowners telling the bank to direct
all communication to their attorney was not a clear indication that they
would not engage in the face-to-face meeting).
Accordingly, we reverse the trial court’s order of involuntary dismissal
and remand for further proceedings consistent with this opinion.
Reversed and remanded for further proceedings consistent with this
opinion.
GROSS and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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