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If They Snooze, They Lose

The 4th District Court of Appeals recently reaffirmed in Haber v. Deutsche Bank National Trust Company that a lender cannot prevail in a foreclosure action if it fails to refute the borrower’s affirmative defense regarding notice and opportunity to cure.

The language of most mortgage agreements concerning this issue reads as follows:

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 specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

In order to be entitled to summary judgment, the mortgagor must refute all of the affirmative defenses or show that they are legally insufficient. Woodrum v. Wells Fargo Mortg. Bank, N.A., 73 So. 3d 873, 874 (Fla. 4th DCA 2011) (citing Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009)).

If banks continue to follow this process without correcting it, they’ll continue to lose at either the trial or appellant level. Let’s remain vigilant in making sure they don’t succeed by cutting even more corners.

Please be advised that this article does not constitute legal advice nor does it provide any basis to form an attorney-client relationship. Nothing in this article should be copied without the express permission of the author.

Mr. Hounchell has a law degree from The University of Florida College of Law and he is a principal in The Law Offices Charles A. Hounchell, P.A., in Tampa, Florida. Mr. Hounchell earned his undergraduate degree from The George Washington University in Washington D.C. and he obtained his MBA in International Management from the American Graduate School of International Management (“Thunderbird”) in Glendale, Arizona.

Mr. Hounchell is a licensed title insurance agent and a real estate agent with Smith and Associates, Inc. http://www.smithandassociates.com/; http://www.livecasanova.com/. He has lived in many different countries, including Spain, Brazil, Argentina, Mexico and Germany and he speaks Spanish and Portuguese. A significant portion of Mr. Hounchell’s law practice is concentrated on Real Estate Law. He can be reached at 813-230-3376 or charlie@flpropertylaw.com.