Bank of New York v. Mieses

Third District Court of Appeal
State of Florida
Opinion filed March 16, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2042
Lower Tribunal No. 09-929
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Bank of New York, etc.,
Appellant,
vs.
Luisa E. Mieses,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Gill S. Freeman,
Judge, and Martin Shapiro, Senior Judge.
Padula Hodkin and David W. Rodstein (Boca Raton), for appellant.
Simeon Genadiev and Orlando Delgado, for appellee.
Before ROTHENBERG, LAGOA and EMAS, JJ.
EMAS, J.
Bank of New York appeals a final summary judgment entered in favor of
Luisa E. Mieses (“Mieses”) in this foreclosure case. The trial court granted
summary judgment upon a finding that Bank of New York failed to comply with
paragraph twenty-two of the mortgage agreement. Upon our de novo review, we
find that Bank of New York substantially complied with the requirements of
paragraph twenty-two, and therefore, reverse the trial court’s summary judgment
order and remand for further proceedings.
Paragraph twenty-two of the mortgage executed by Mieses provided, in
pertinent part:
Acceleration; Remedies. Lender shall give notice to
Borrower prior to acceleration following Borrower’s
breach of any covenant or agreement in this Security
Instrument. . . . The notice shall further inform Borrower
of the right to reinstate after acceleration and the right to
assert in the foreclosure proceeding the non-existence of
a default or any other defense of Borrower to acceleration
and foreclosure.
Following an alleged default, the lender sent Mieses a default notice, informing
her:
If the default is not cured on or before October 16, 2008,
the mortgage payments will be accelerated with the full
amount remaining accelerated and becoming due and
payable in full, and foreclosure proceedings will be
initiated at that time. . . . You may, if required by law or
your loan documents, have the right to cure the default
after the acceleration of the mortgage payments and prior
to the foreclosure sale of your property if all amounts
past due are paid within the time permitted by law. . . .
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Further, you may have the right to bring a court action to
assert the non-existence of a default or any other defense
you may have to acceleration and foreclosure.
The trial court found that Bank of New York’s default notice failed to
comply with paragraph twenty-two of the mortgage agreement because it advised
Mieses only that she could “bring a court action,” not that she had the right to
“assert in the foreclosure proceeding” the non-existence of default or any other
defense to acceleration and foreclosure. We hold that the trial court erred in this
determination.
This court recently held that a “lender’s default notice to the borrower must
only substantially comply with the conditions precedent set forth in the mortgage.”
Bank of New York Mellon v. Nunez, 180 So. 3d 160, 163 (Fla. 3d DCA 2015).
The language of paragraph twenty-two and the default notice in Nunez is identical
to the language of paragraph twenty-two and the default notice in the instant case.
In Nunez, we reversed the trial court’s order of involuntary dismissal, holding that
the default notice substantially complied with paragraph twenty-two of the
mortgage.
The facts and holding of Nunez are on all fours with the case before us. See
also SunTrust Mortg. Inc. v. Garcia, 41 Fla. L. Weekly D384 (Fla. 3d DCA Feb.
10, 2016) (reversing final summary judgment and holding, on appellee’s
confession of error, that the language of the default notice (containing identical
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language to that in the instant case) substantially complied with paragraph twenty-
two of the mortgage); Bank of America v. Cadet, 41 Fla. L. Weekly D238 (Fla. 3d
DCA Jan. 20, 2016); Bank of New York Mellon v. Johnson, 41 Fla. L. Weekly
D287 (Fla. 5th DCA January 29, 2016); Green Tree Servicing, LLC v. Milam, 177
So. 3d 7 (Fla. 2d DCA 2015).1
Accordingly, because we find, as in Nunez, that the default notice
substantially complied with paragraph twenty-two of Mieses’ mortgage, we
reverse the final summary judgment and remand for further proceedings.
REVERSED AND REMANDED.
1 We note that the trial court did not have the benefit of Nunez (or the other cases
cited herein) at the time it rendered its final summary judgment in November 2014.
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