IN THE SECOND DISTRICT COURT OF APPEAL IN AND FOR THE STATE OF FLORIDA … · 2017-04-06 · IN AND...
Transcript of IN THE SECOND DISTRICT COURT OF APPEAL IN AND FOR THE STATE OF FLORIDA … · 2017-04-06 · IN AND...
IN THE SECOND DISTRICT COURT OF APPEAL
IN AND FOR THE STATE OF FLORIDA
BRENDAN BRINDISE and,
SUZANNE BRINDISE,
Appellants,
Case No. 2D14-3316
v.
L.T. No.: 12-CA-56544
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE, FOR THE BENEFIT OF
HARBORVIEW 2005-3 TRUST FUND,
Appellee.
___________________________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, FLORIDA
__________________________________________________________________
APPELLANT’S INITIAL BRIEF
________________________________________________________________
_____________________________
Mark P. Stopa, Esquire
FBN: 550507
STOPA LAW FIRM
2202 N. Westshore Blvd.
Suite 200
Tampa, FL 33607
(727) 851-9551
ATTORNEY FOR APPELLANTS
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................... ii-iv
STATEMENT OF THE CASE .................................................................... 1
SUMMARY OF ARGUMENT .................................................................... 8
STANDARD OF REVIEW .......................................................................... 10
ARGUMENT ................................................................................................. 11
I. THE LOWER COURT ERRED BY ENTERING THE
FINAL JUDGMENT OF FORECLOSURE WHERE
THE BANK DID NOT GIVE BRINDISE WRITTEN
NOTICE OF THE ASSIGNMENT OF THE DEBT,
AS REQUIRED BY FLA. STAT. 559.715. ..................................... 11
CONCLUSION .............................................................................................. 31
CERTIFICATE OF SERVICE ................................................................... 32
CERTIFICATE OF FONT COMPLIANCE ............................................. 32
ii
TABLE OF AUTHORITIES
American Integrity Ins. Co. of America v. Gainey,
100 So. 3d 720 (Fla. 2d DCA 2012) ..................................................... 10, 12
Andrews v. Direct Mail Express, Inc.,
1 So. 3d 131 (Fla. 4th DCA 2010) ........................................................ 10
Banco Espirito Santo, Ltd. v. BBO Int'l, B.V.,
979 So. 2d 1030 (Fla. 3d DCA 2008) ................................................... 10
Battle v. Gladstone Law Group, P.A.,
2014 U.S. Dist. LEXIS 91621 .............................................................. 19
Birster v. Am. Home Mortg. Servicing, Inc.,
481 App'x 579 (11th Cir. 2012) ............................................................ passim
Brown v. City of Vero Beach,
64 So. 3d 172 (Fla. 4th DCA 2011) ...................................................... 21
Burt v. Hudson & Keyse, LLC,
138 So. 3d 1193 (Fla. 5th DCA 2014) .................................................. passim
Carsillo v. City of Lake Worth,
995 So. 2d 1118 (Fla. 4th DCA 2008) .................................................. 19
Commercial Carrier Corp. v. Indian River County,
371 So. 2d 1010 (Fla. 1979) ................................................................. 24
Correa v. U.S. Bank, N.A.,
118 So. 3d 952 (Fla. 2d DCA 2013) ..................................................... 10, 29
Fla. Dept. of Revenue v. Fla. Municipal Power Agency,
789 So. 2d 320 (Fla. 2001) ................................................................... 27
iii
Freire v. Aldridge Connors, LLP,
994 F.Supp. 2d 1284 (S.D. Fla. 2014) .................................................. 19, 24
Freni v. Collier County,
588 So. 2d 291 (Fla. 2d DCA 1991) ..................................................... 24
Gann v. BAC Home Loans Servicing,
145 So 3d 906 (Fla. 2d DCA 2014) ...................................................... passim
Hall v. MLG, P.A.,
2013 U.S. Dist. LEXIS 157414 (S.D. Fla. 2013) ................................. 20
Hallstrom v. Tillamook County,
493 U.S. 20 (1989)................................................................................ 24
Lacombe v. Deutsche Bank Nat'l Trust Co.,
149 So. 3d 152 (Fla. 1st DCA 2014) .................................................... 10, 29
Lara v. Specialized Loan Servicing, LLC,
2013 U.S. Dist. LEXIS 127192 (S.D. Fla. 2013) ................................. 20
LeBanc v. Unifund CCR Partners,
601 F.3d 1185 (11th Cir. 2000) ............................................................ 28
Legg v. Voice Media Group, Inc.,
990 F.Supp. 2d 1351 (S.D. Fla. 2014) .................................................. 28
Lewis v. Marinosci Law Group, P.C.,
2013 U.S. Dist. LEXIS 156732 (S.D. Fla. 2013) ................................. 20
Martin County v. Polivka Paving, Inc.,
44 So. 3d 126 (Fla. 4th DCA 2010) ...................................................... 10
Motor v. Citrus County School Board,
856 So. 2d 1054 (Fla. 5th DCA 2003) .................................................. 11
iv
Neate v. Cypress Club Condo.,
718 So. 2d 390 (Fla. 4th DCA 1998) (en banc) ................................... 24
Pino v. Bank of New York,
121 So. 3d 23 (Fla. 2013) ..................................................................... 13
Read v. MFP, Inc.,
85 So. 3d 1151 (Fla. 2d DCA 2012) ..................................................... 27
Reese v. Ellis, Painter, Ratterree & Adams, LLP,
678 F.3d 1211 (11th Cir. 2012) ............................................................ passim
Sheriff of Orange County v. Boultbee,
595 So. 2d 985 (Fla. 5th DCA 1992) .................................................... passim
Smith v. Piezo Tech. and Prof. Administrators,
427 So. 2d 182 (Fla. 1983) ................................................................... 27
State v. Goode,
830 So. 2d 817 (Fla. 2002) ................................................................... 27
Temple v. Aujla,
681 So. 2d 1198 (Fla. 5th DCA 1996) .................................................. 26
Trent v. Mortg. Electronic Registration Systems, Inc.,
618 F.Supp. 2d 1356 (M.D. Fla. 2007) ................................................ passim
Wolkoff v. American Home Mortg. Servicing, Inc.,
Case No. 2D12-6460 (Fla. 2d DCA 2014) ........................................... 29
Fla. Stat. 559.55 .............................................................................................. passim
Fla.Stat. 559.715 ............................................................................................. passim
Fla.Stat. 559.72 ............................................................................................... passim
1
STATEMENT OF THE CASE AND FACTS
Appellee, U.S. Bank National Association, as Trustee for the Benefit of
Harborview 2005-3 Trust Fund (“the Bank”), initiated the lower court case by suing
to foreclose the homestead of Appellants, Brendan and Suzanne Brindise
(“Brindise”), and to recoup a deficiency. R.1-32; 55-91.
After a non-jury trial, the lower court entered a Final Judgment of Foreclosure.
The trial transcript reflects a litany of errors, see n.2, infra, but Brindise appeal on
just one: the lower court’s entry of judgment in favor of the Bank notwithstanding
the Bank’s failure to comply with a condition precedent, i.e. the notice required by
Fla. Stat. 559.715.
In its Amended Complaint, the Bank generally alleged compliance with
conditions precedent. R.55-91, ¶ 9. In their Answer to the Amended Complaint,
Brindise specifically denied such compliance. In particular, Brindise asserted the
Bank “did not comply with Fla. Stat. 559.715,”1 R.104-108, ¶ 9, which statute
1 In their Motion for Summary Judgment, Brindise expounded upon the
rationale for their specific denial of this condition precedent. R.123-125. To wit,
Brindise set federal case law interpreting the federal counterpart of Fla. Stat. 559.715
and argued the statute required that the Bank give Brindise written notice of the
assignment of the debt 30 days before filing this lawsuit. R.123-125. Brindise also
filed affidavits showing the Bank had not given them the notices. R.127-131.
Though time constraints prevented the Motion for Summary Judgment from being
heard before trial, these documents (coupled with the specific denial in their Answer)
2
provides:
559.715 Assignment of consumer debts.—This part does not prohibit the
assignment, by a creditor, of the right to bill and collect a consumer debt.
However, the assignee must give the debtor written notice of such
assignment as soon as practical after the assignment is made, but at least
30 days before any action to collect the debt.
(boldface added).
At trial, the Bank introduced no evidence to prove compliance with Fla. Stat.
559.715. Just one witness testified, an employee of Nationstar Mortgage, LLC
(“Nationstar”) named Jose Perez (“Mr. Perez”), and his testimony said absolutely
nothing about the Bank having given Brindise written notice of the assignment of
debt. R.246-247. In fact, the only time the Bank was even mentioned during its case
in chief was when Brindise objected to Mr. Perez, a Nationstar employee, testifying
on behalf of the Bank.2
plainly alerted the Bank to the existence of this defense and put the Bank on notice
of their intent to argue 559.715 non-compliance at trial. 2 The Power of Attorney relied upon by Nationstar to testify on the Bank’s
behalf made clear that it was “limited” to those trusts identified on Exhibit “A”
thereof, and the trust in question was not one of the trusts listed. R.157-174. While
Mr. Perez wanted to assert otherwise by pointing to line item #147 of that exhibit,
that trust was “HarborView Mortgage Loan Trust 2005-3 Mortgage Loan Pass-
Through Certificates, Series 2005-1,” whereas the trust named as the plaintiff herein
is “HarborView 2005-3 Trust Fund.” R.157-174.
Brindise considered appealing on this basis, not to mention the Bank’s lack of
standing at the inception of the case and the absence of any admissible evidence
showing compliance with paragraph 22. Candidly, however, Brindise chose to
3
The six exhibits introduced into evidence (the note, mortgage, an assignment
of mortgage the payment history, a default letter,3 and a power of attorney) were
completely silent on whether Brindise were given notice of the assignment of the
debt to the Bank.4 R.155-227. As such, at the close of the Bank’s case, Brindise
moved for an involuntary dismissal, arguing the Bank failed to comply with the
condition precedent in Fla. Stat. 559.715. That argument transpired as follows:5
MR. STOPA: And then another issue that we should prevail on is that
the plaintiff did not – provided absolutely no evidence to show that it
complied with the condition precedent in Florida Statute 559.715. And
I have a – that statute and a compilation of case authorities. You may
not have heard [about] this issue. This is one that I have been arguing
for about the last year pretty hard and I am up to 20 different circuit
court judges who have agreed with me that this is a condition precedent
in a mortgage foreclosure case. 20, not 1 or 2, 20.
And now I’ll start by saying there are no Florida DCA decisions
on this in the mortgage foreclosure context. In fact, the very first
Florida DCA case that came out on this statute at all just came out on
May 23rd of this year [2014], in this case called Burt [v.] Hudson. It’s
not even a foreclosure case, but I’m showing you it because that’s the
only case that exists that even cites the statute. So -- but you look at
concentrate on 559.715 given the complete lack of evidence on that issue, the de
novo standard of review, and in the hopes of creating some much-needed case law
on application of Fla. Stat. 559.715 in the mortgage foreclosure context. 3 The May 17, 2010 letter precipitating the underlying, mortgage foreclosure
lawsuit demanded payment from Brindise in the amount of $3,941.68, failing which
the Bank would accelerate and foreclose. R.177-178. 4 An Assignment of Mortgage was introduced, R.156, but nothing showing
notice thereof was given to Brindise. 5 The particulars of this argument will become noteworthy as Brindise cites
subsequently-decided case law from this Court.
4
the statute and what it provides, I think it’s a clear statute on its face. It
requires if you’re not the original creditor, you have to give written
notice of an assignment at least 30 days before any action to collect a
debt.
Now, clearly there was an assignment here, you allowed an
assignment into evidence. Clearly this was not the original creditor,
hence the assignment and the endorsed note, okay, so the statute
provides that they had to give written notice of the assignment at least
30 days before any action to collect the debt.
The only legal question that arises from that statute is, well, is
mortgage foreclosure an action to collect a debt? Have you ever heard
this argument before, Judge?
THE COURT: Not as well presented as you have. I’ve looked at it and
troubled over it some, but --
MR. STOPA: I’ve argued it hundreds of times. Now, the plaintiff’s
best argument and one that I regularly argue is a case called Trent out
of the Middle District in Florida in 2007; that case said that mortgage
foreclosure is not an action to collect a debt and that’s the case I
regularly have cited against me on this issue.
The problem with that and why I have been so successful on the
circuit court level on this is that in 2012 the 11th Circuit issued Reese
and Birster. The 11th Circuit, of course, is higher than the Middle
District, is controlling in the Federal jurisdiction for the entire State of
Florida, and the Reese and Birster decisions make clear that mortgage
foreclosure is an action to collect a debt within the ambit of the FDCPA.
And that may sound like a Federal statute as I’ll go through the cases
here, that Federal statute has the same language as the State statute.
And the law is clear that when Florida DCAs haven’t ruled on an issue
on a Florida statute that is patterned after a Federal statute, we look to
the Federal cases for guidance. So that’s what we’re doing, we look to
the Federal cases for guidance. The 11th Circuit is a very high
authority, one step down from the US Supreme Court.
The holding of this Reese case, 678 F.3d 1211, I highlighted on
page four, what the 11th Circuit was presented with was, well, if you’re
5
a creditor and you’re suing for money, then the FDCPA requires that
you give notice of assignment of the debt before you sue –
THE COURT: I think you’ve made your argument. I’m not even sure
this is plead, is it?
MR. STOPA: It is, Judge. It’s in our answer, it’s specifically denied
in our answer, and I –
THE COURT: I didn’t see it when I looked at it.
MR. STOPA: It’s not an affirmative defense. It’s specifically denied
in the answer, so they generally plead condition precedent, we
specifically deny in our answer. It’s certainly a plead issue. I’ve done
it this way hundreds of times. And the Boultbee case that I’ve provided
you provides that – oh, here, I can give you Robert Motor, too – that
this is not an affirmative defense. A condition precedent gets
specifically denied just as we’ve done here; that’s at 856 So. 2d 1054.
So it is certainly a plead issue before the Court and I want to make sure
you understand what these federal cases say since that’s really all we
have here.
THE COURT: I’ve read some of them.
MR. STOPA: Reese explains that a debt is still a debt even if it is
secured. They called it a loophole that wouldn’t make sense to have
the FDCPA apply if a creditor is suing for money, but to have it not
apply if they’re suing to foreclose a security interest that secures that
money. So they call it – they say that can’t make sense, it doesn’t make
sense, and they say the FDCPA, the statute applies whether you’re
suing to foreclose or for money, that you have to give the notice either
way.
Then Birster specifically applies that to mortgage foreclosure;
that’s Birster. And then Battle – I’m trying to go quickly here – Battle
reconciles Trent. Remember, Trent is the plaintiff’s best case, that 2007
Middle District Case. Battle reconciles Trent and Reese. The Battle
case cites Trent but then it says –
6
THE COURT: All things have to come to an end. I think you’ve made
your point, your record. Have you got any other points you want to
raise?
[after a recess] …
THE COURT: Before we start, I do need to correct something. Statute
559.715 is properly raised in paragraph 9 of the – it’s just hidden. It
was properly raised.
R.246-347, pp. 71-79.
The Bank presented no opposing case law and the lower court acknowledged
Brindise had properly raised the issue of Fla. Stat. 559.715. Nonetheless, the lower
court denied the motion for involuntary dismissal without explanation. As such, the
trial proceeded, and Brindise obtained the following testimony from Mr. Perez:
Q: You don’t have any documents with you here today showing that notice
of an assignment was given to my client, correct?
A: I’m sorry, a notice of assignment?
Q: Let me ask it different. See that assignment of mortgage –
A: Sure.
Q: -- showing that the mortgage was assigned to US Bank National
Association as Trustee for the Benefit of Harborview 2005-3 Trust
Fund; you don’t have any documents with you here today notifying my
client of the existence of that assignment, do you?
A: No.
7
Q: Nothing, no document with you here today indicating that to my client,
we’re now the holder of this loan, we’re the one who’s going to sue
you, nothing like that, correct?
A: No, I don’t have anything that says that, no.
R.236-347, pp. 79-81.
Notwithstanding the Bank’s admission that it had no notice of assignment, the
lower court again declined to enter an involuntary dismissal. Instead, the lower court
entered the Final Judgment of Foreclosure from which this timely appeal emanates.
8
SUMMARY OF THE ARGUMENT
Under the plain language of Fla. Stat. 559.715, the Bank was required to give
Brindise written notice of the assignment of the debt at least 30 days before any
action to collect the debt. At trial, the Bank admitted it gave no such notice to
Brindise, yet the lower court entered the Final Judgment of Foreclosure anyway.
That ruling requires reversal.
Application of Fla. Stat. 559.715 in the mortgage foreclosure context is an
issue of first impression on the Florida DCA level. That said, this is not a new issue.
The undersigned has made this argument many hundreds of times on the circuit court
level, and 41 different judges (most of them presiding in the circuits of this Court)
have agreed. Applying a de novo standard of review, this Court should interpret Fla.
Stat. 559.715 in the manner these 41 judges have, issue a written decision so
clarifying, reverse the Final Judgment of Foreclosure, and remand with instructions
to dismiss this case.
Such an opinion might sound ground-breaking, but the ground has already
been broken. In fact, an August, 2014 decision from this Court holds mortgage
foreclosure is an action to collect debt within the ambit of the FCCPA, employing a
virtually identical analysis as that which Brindise made to the lower court in this
case two months prior. As such, the notice requirements of Fla. Stat. 559.715 apply
9
in mortgage foreclosure cases, particularly here, where the Bank’s lawsuit was
precipitated by a written demand for money and accompanied by a prayer for a
deficiency.
Once this Court concludes the statute applies, the only question left is what
remedy to employ for a violation thereof. The civil remedies statute of the FCCPA
authorizes a separate, civil action for violations of other portions of the FCCPA, but
not for a violation of Fla. Stat. 559.715. Hence, the only way to enforce the notice
requirement of the statute is to treat it as a defense, i.e. a condition precedent, and
dismiss lawsuits where the notice was not given. To rule otherwise would render
that portion of the statute meaningless and leave consumers without a remedy – the
wrong result in any context, but particularly so vis a vis a consumer protection
statute.
While most of the circuit judges within the ambit of this Court have agreed
with the analysis set forth herein,6 a few have not. Hence, a written decision is
necessary to clarify that Fla. Stat. 559.715 applies in the mortgage foreclosure
context and bars foreclosure where, as here, the notice is not given. This Court
should rule accordingly.
6 Well, most of the circuit judges who hear foreclosure cases, anyway.
10
STANDARD OF REVIEW
“The standard of review on appeal of the trial court’s ruling on a motion for
directed verdict is de novo.” Martin County v. Polivka Paving, Inc., 44 So. 3d 126,
131 (Fla. 4th DCA 2010); see also Andrews v. Direct Mail Express, Inc., 1 So. 3d
1192 (Fla. 5th DCA 2009); Banco Espirito Santo, Ltd. v. BBO Int’l, B.V., 979 So.
2d 1030 (Fla. 3d DCA 2008). A challenge to the sufficiency of the evidence in a
nonjury trial under Rule 1.530(e) is the equivalent of a motion for directed verdict
in a jury trial, so it would stand to reason the standard of review under Rule 1.530(e)
would also be de novo.7 See Lacombe v. Deutsche Bank Nat’l Trust Co., 149 So.
3d 152 (Fla. 1st DCA 2014); Correa v. U.S. Bank, N.A., 118 So. 3d 952 (Fla. 2d
DCA 2013). Hence, this Court should apply a de novo standard of review in
evaluating whether the Bank presented sufficient evidence to prove its case.
Likewise, questions of statutory interpretation are reviewed de novo. See
American Integrity Ins. Co. of America v. Gainey, 100 So. 3d 720 (Fla. 2d DCA
2012). As such, this Court should adjudicate the question of whether Fla. Stat.
559.715 applies in a mortgage foreclosure case under a de novo standard.
7 The undersigned has not found a case which expressly so holds, but Lacombe
and Correa do seem to so indicate.
11
ARGUMENT
I. THE LOWER COURT ERRED BY ENTERING THE FINAL
JUDGMENT OF FORECLOSURE WHERE THE BANK DID NOT
GIVE BRINDISE WRITTEN NOTICE OF THE ASSIGNMENT OF
THE DEBT, AS REQUIRED BY FLA. STAT. 559.715.
Florida law requires plaintiffs to allege compliance with conditions precedent
generally; defendants must then specifically deny such compliance. See
Fla.R.Civ.P. 1.120(c). Here, the Bank pled compliance with conditions precedent
generally, R.55-91, ¶ 9, and Brindise denied compliance with Fla. Stat. 559.715
specifically, R.104-108, ¶ 9, so the burden of proving compliance with Fla. Stat.
559.715 at trial fell onto the Bank.8 In the words of the Fifth District:
In the instant case, appellee pled performance of all conditions
precedent as required by rule 1.120(c) of the Florida Rules of Civil
Procedure and, pursuant to the same rule, appellant specifically denied
that appellee complied with the requirements of section 768.28(6). A
specific denial of a general allegation of the performance or occurrence
of conditions precedent shifts the burden to the plaintiff to prove the
allegations concerning the subject matter of the specific denial.
Consequently, appellee had the burden to prove compliance with
8 A defendant’s specific denial of compliance with conditions precedent is
different than pleading an affirmative defense. As one judge put it:
“The denial of the occurrence of conditions precedent is not an
“affirmative defense,” which relates only to matters of avoidance.
Fla.R.Civ.P. 1.110(d). Rather, it is a special form of denial that must
be pled with specificity. Fla.R.Civ.P. 1.120(c).
Motor v. Citrus County School Board, 856 So. 2d 1054, 1055 n.1 (Fla. 5th DCA
2003) (Torpy, J., specially concurring).
12
the applicable statutory claim provisions of section 768.28(6) …
Appellee failed to present any evidence that the claim had been
filed with the Department. This was fatal to her case. We note that
appellee did not ask the trial court to re-open her case when this
deficiency was raised in appellant’s motions for directed verdict.
Accordingly, we reverse the final judgment entered in this cause and
remand for entry of a final judgment in favor of appellant.
Sheriff of Orange County v. Boultbee, 595 So. 2d 985, 987 (Fla. 5th DCA 1992).
At trial, the Bank introduced no evidence showing it gave Brindise written
notice of the assignment of the debt at least 30 days before filing suit. No such notice
was introduced into evidence, and the only trial witness admitted the Bank had no
such notice. R.236-347, pp. 79-81. As a result, the instant appeal does not turn on
the facts (there being no facts which could support the Final Judgment), but on the
law.
Whether Fla. Stat. 559.715 applies in the mortgage foreclosure context has
not been specifically addressed by any Florida appellate decision. As this is a matter
of statutory interpretation, it is plainly subject to a de novo review. Gainey, 100 So.
3d at 721. Hence, employing a de novo standard, this Court should decide whether
Fla. Stat. 559.715 applies in mortgage foreclosure cases. That question is dispositive
of this appeal.
In deciding whether this statute applies in this case (or, for that matter, any
mortgage foreclosure case), this Court should begin its analysis with the plain
13
language of the statute. See e.g. Brown v. City of Vero Beach, 64 So. 3d 172 (Fla.
4th DCA 2011). Fla. Stat. 559.715 is part of the Florida Consumer Collection
Practices Act (“FCCPA”). The statute provides:
559.715 Assignment of consumer debts.—This part does not prohibit the
assignment, by a creditor, of the right to bill and collect a consumer debt.
However, the assignee must give the debtor written notice of such
assignment as soon as practical after the assignment is made, but at least
30 days before any action to collect the debt.
(boldface added).
Fla. Stat. 559.715 requires an assignee give a debtor written notice at least 30
days before any action to collect the debt. The term “debt” is defined by Florida
Statute 559.55(1). “Consumer debt” is given this same definition. While the
definition is quite broad, the statute is not 100% clear whether “mortgage
foreclosure” would constitute “debt” in this context. The question hence becomes
whether “mortgage foreclosure” is an “action to collect a debt” as defined by Fla.
Stat. 559.715.9
9 “Assignee” is not defined by Chapter 559. As such, this Court should resort to
its ordinary meaning, as from a dictionary. See Pino v. Bank of New York, 121 So.
3d 23 (Fla. 2013). “Assignment” is defined by West’s Encyclopedia of American
Law, Edition 2, Copyright 2008, as follows:
A transfer of rights in real property or personal property to another that
gives the recipient – the transferee – the rights that the owner or holder
of the property – the transferor – had prior to the transfer.
An “assignee,” hence, is anyone who receives such a transfer of rights in real or
14
Fla. Stat. 559.715 is mentioned in just one published decision, Burt v. Hudson
& Keyse, LLC, 138 So. 3d 1193 (Fla. 5th DCA 2014), and that was not a mortgage
foreclosure case. However, on August 15, 2014, this Court decided Gann v. BAC
Home Loans Servicing, LP, 145 So. 3d 906 (Fla. 2d DCA 2014), a ground-breaking
decision in that it held mortgage foreclosure plaintiffs are subject to the FCCPA, of
which Fla. Stat. 559.715 is part.
In Gann, “the bank argued that the enforcement of a security interest such as
a mortgage is not considered the collection of a consumer debt.” Id. at 908. In ruling
against the creditor, this Court began its analysis with a 2007 decision from the
Middle District of Florida, Trent v. Mortg. Electronic Registration Systems, Inc.,
618 F.Supp. 2d 1356 (M.D. Fla. 2007). Id. at 908. In 2007, Trent ruled “filing a
foreclosure lawsuit is not a debt collection practice under § 559.72 of the FCCPA.”
618 F.Supp. 2d at 1361.
As this Court clarified in Gann, however, Trent is no longer the law.
Following two 2012 decisions from the Eleventh Circuit (the Eleventh Circuit, of
personal property.
In the case at bar, there can be no doubt that the Bank fits the statutory
definition of “assignee.” As the face of the Note reflects, the Bank was not the
original creditor, but was transferred the Note and Mortgage in question via an
endorsed Note, R.199-202, and an Assignment of Mortgage. R.156.
15
course, being the controlling appellate court for the Middle District of Florida), this
Court explained:
The Bank filed a motion to dismiss the complaint and, with
respect to the FCCPA claim, argued that the enforcement of a security
interest such as a mortgage is not considered the collection of a
consumer debt …
Subsequent to Trent, the Eleventh Circuit considered a claim
under the Federal Act based on a letter and enclosed documents that a
law firm representing the lender sent to the debtors which demanded
payment of the debt and threatened to foreclose on the property if the
debtors did not pay. Reese v. Ellis, Painter, Ratterree & Adams, LLP,
678 F.3d 1211, 1214 (11th Cir. 2012). The law firm moved to dismiss
the complaint for failure to state a claim and argued, among other
things, that the letter and documents attached to the complaint did not
constitute debt collection activity but instead were only an attempt to
enforce its client's security interest. Id. at 1215. The district court
dismissed the claim, and the Eleventh Circuit reversed. Id. at 1218-19.
The Reese case involved both a promissory note and a security
interest, and the promissory note is a debt within the plain language of
the Federal Act. Id. at 1217. The letter stated "that the 'Lender hereby
demands full and immediate payment of all amounts due.'" Id. The
letter also threatened "that 'unless you pay all amounts due and owing
under the Note,' attorney's fees 'will be added to the total amount for
which collection is sought.'" Id. The other documents also had language
indicating [*8] that the law firm was "'ATTEMPTING TO COLLECT
A DEBT.'" Id.
The Eleventh Circuit rejected the law firm's argument that the
purpose of the letter and documents was only to enforce a security
interest. Id. "That argument wrongly assumes that a communication
cannot have dual purposes." Id. The court recognized that if it had
adopted the law firm's argument "[t]he practical result would be that the
[Federal] Act would apply only to efforts to collect unsecured debts. So
16
long as a debt was secured, a lender (or its law firm) could harass or
mislead a debtor without violating the [Federal Act]." Id. at 1218.
Rather, "[a] communication related to debt collection does not become
unrelated to debt collection simply because it also relates to the
enforcement of a security interest. A debt is still a 'debt' even if it is
secured." Id.; see also Birster v. Am. Home Mortg. Servicing, Inc., 481
App’x 579, 583 (11th Cir. 2012) ("Reese provides that an entity can
both enforce a security interest and collect a debt.").
Here, the language in the letters from the Bank to Gann do not
explicitly state that it is attempting to collect a debt as the documents
did in Reese. However, the first letter states that if the Bank does not
receive a specific amount due by a specified date, "foreclosure
proceedings [*9] may begin or continue." The second letter states that
"it is vital that the full amount currently due is paid" and asks Gann to
send "the total amount due, $414.30, immediately" or contact the
Bank's office. The letters plainly seek collection of an alleged debt.
Therefore, the trial court erred in determining that the letters did
not contain language that could be construed as an attempt to collect on
the underlying debt and only were attempts to enforce the Bank's
security instrument. Accordingly, we reverse the order to the extent it
dismisses the FCCPA claim in count one.
Id. at 908-909.
This Court’s August, 2014 decision in Gann is remarkably similar to the
argument Brindise’s undersigned counsel advanced below at trial two months
earlier. To wit, just as the undersigned acknowledged the Middle District’s 2007
decision Trent but argued it was no longer the law in light of the Eleventh Circuit’s
2012 opinions in Reese and Birster, so, too did this Court. Compare id. at 908-909
with R.246-247, pp. 71-79. Essentially, the undersigned argued Gann to the lower
17
court before Gann even existed. Suffice it to say Brindise not only preserved their
arguments, but they were correct in their interpretation of the law, while the lower
court, respectfully, was not.
Under Gann, mortgage foreclosure plaintiffs such as the Bank are subject to
the FCCPA. Id. As Fla. Stat. 559.715 is part of the FCCPA (just one number off
from the statute analyzed in Gann, Fla. Stat. 559.72), this Court’s precedent requires
it to conclude that Fla. Stat. 559.715 applies in mortgage foreclosure cases like the
case at bar. Gann, as well as a closer analysis of Reese, Birster, and the cases
following them (the very line of cases this Court relied upon in deciding Gann) lead
to no other conclusion.
In Reese, a secured creditor argued the Fair Debt Collections Practices Act
(“FDCPA,” the federal version of the FCCPA) did not apply because it was only
seeking to foreclose a security interest, not collect a debt. 678 F.3d at 1214. The
Eleventh Circuit disagreed, concluding such a distinction would create a “loophole”
in the FDCPA and “can’t be right.” In the Reese court’s words:
The rule the Ellis law firm asks us to adopt would exempt from the
provisions of § 1692e any communication that attempts to enforce a
security interest regardless of whether it also attempts to collect the
underlying debt. That rule would create a loophole in the FDCPA. A
big one. In every case involving a secured debt, the proposed rule would
allow the party demanding payment on the underlying debt to dodge
the dictates of § 1692e by giving notice of foreclosure on the secured
18
interest. The practical result would be that the Act would apply only to
efforts to collect unsecured debts. So long as a debt was secured, a
lender (or its law firm) could harass or mislead a debtor without
violating the FDCPA. That can't be right. It isn't. A communication
related to debt collection does not become unrelated to debt collection
simply because it also relates to the enforcement of a security interest.
A debt is still a “debt” even if it is secured.
Id. The Eleventh Circuit ruled similarly in Birster, applying the principle of law in
Reese specifically to mortgage foreclosure (in particular, the paragraph 22 letter that
precipitates lawsuits with the standard, Fannie Mae mortgage). 481 App’x at 583.
In the case at bar, the Bank sent Brindise a letter demanding payment of
$3,941.68, failing which it would accelerate and foreclose, which letter precipitated
this mortgage foreclosure lawsuit. R.177-178. This is precisely the fact pattern
which the 11th Circuit deemed an action to collect a debt. Id. Under Birster (and
Gann, which follows Birster), there is no way to conclude the Bank was not
collecting a debt where it sent Brindise this paragraph 22 letter demanding payment,
then sued Brindise for foreclosure and a deficiency.
In the months after Reese and Birster, several federal court cases have ruled
mortgage foreclosure is an action to collect a debt under the FDCPA, rejecting
arguments otherwise from financial institutions and their counsel. For instance, in
2014, the Southern District of Florida followed Reese and ruled a mortgage
foreclosure complaint was an action to collect a debt within the ambit of the FDCPA
19
where the foreclosing plaintiff asked the court to reserve jurisdiction to award a
deficiency. Freire v. Aldridge Connors, LLP, 994 F.Supp. 2d. 1284, 1288 (S.D. Fla.
2014). The Bank’s Complaint in the case at bar is the same, as it sought both
mortgage foreclosure and a deficiency. R.55-91.
In 2013, the Southern District of Florida ruled similarly:
Defendants argue that generally a foreclosure action is not debt
collection for purposes of the FDCPA and, therefore, the filing the state
court complaint is not a debt collection activity. [Trent, supra.]
However, money owed on a promissory note secured by a mortgage is
a debt for purposes of the FDCPA. [Reese, supra.]
Battle v. Gladstone Law Group, P.A., 2013 U.S. Dist. LEXIS 91621 (S.D. Fla.
2013). Notably, Battle so ruled immediately after citing the FDCPA’s definition of
“debt.” Significantly, that definition is exactly the same as set forth in the FCCPA,
Fla. Stat. 559.55(1).
Where the FDCPA and the FCCPA define “debt” the exact same way, it only
makes sense for this Court to conclude mortgage foreclosure is an action to collect
a debt under the FDCPA, just as federal courts have done. See Carsillo v. City of
Lake Worth, 995 So. 2d 1118, 1119 (Fla. 4th DCA 2008) (“It is well established that
if a Florida statute is patterned after a federal law, the Florida statute will be given
the same construction as the federal courts give the federal act.”). In other words,
where the Eleventh Circuit has concluded “a debt is still a debt even if it is secured,”
20
Reese, supra, so, too, should this Court. The Gann decision (employing this very
analysis) only cements such a conclusion.10
Rulings from Florida’s circuit court judges are obviously not binding on this
Court and are arguably unnecessary in light of Gann. However, these rulings should
persuade this Court, particularly given the sheer volume of them. To wit, when
presented with the authorities cited above, 41 different circuit court judges in Florida
have ruled in the undersigned’s favor on this issue (some of them many times).11
See Notice of Authority, 1. Not one. Not five. Forty-one different circuit court
judges.12 Essentially, all these judges did was agree with the same analysis the
10 The plethora of other, federal cases in Florida deeming mortgage foreclosure
an action to collect a debt under the FDCPA further support such a ruling. See Lara
v. Specialized Loan Servicing, LLC, 2013 U.S. Dist. LEXIS 127192 (S.D. Fla. 2013)
(“A home loan is a “debt” even if it is secured.”); Lewis v. Marinosci Law Group,
P.C., 2013 U.S. Dist. LEXIS 156732 (S.D. Fla. 2013) (following Reese, concluding
consumer stated a cause of action under the FDCPA for making false allegations in
a mortgage foreclosure case); Hall v. MLG, P.A., 2013 U.S. Dist. LEXIS 157414
(S.D. Fla. 2013) (same).
11 Some of these Orders (the ones which specify the dismissal was based on
failure to comply with the notice requirements of Fla. Stat. 559.715) are attached.
There are many others which ruled on this basis but are not included because the
face of the Order did not specify that statute as the basis of the ruling.
12 Most of these judges preside in circuits for which this Court acts as the
appellate court, including Hon. Mark Shames, Hon. Pamela Cambpell, Hon. John
Schaefer, Hon. Bruce Boyer, Hon. David Demers, Hon. Jack Day, Hon. Walt Logan,
Hon. Thomas Minkoff, Hon. Marion Fleming, Hon. Amy Williams, Hon. Sandra
Taylor, Hon. Perry Little, Hon. Donald Evans, Hon. Christine Vogel, Hon. Raul
21
undersigned made at trial in this case – the same analysis this Court employed in
Gann.
Once this Court concludes mortgage foreclosure is an action to collect a debt,
it is easy to see why this Court should reverse the Final Judgment of Foreclosure.
The Bank was not the original creditor, and this lawsuit, seeking to foreclose
Brindise’s home, was an action to collect a debt. Hence, the Bank was obligated to
give Brindise written notice of the assignment of the debt at least 30 days before
filing this lawsuit, see Fla. Stat. 559.715, yet the Bank failed to satisfy its burden of
proof in this regard at trial. As such, the Final Judgment at bar cannot stand.
Based on the undersigned’s extensive experience arguing this issue (literally,
hundreds of hearings before dozens of circuit judges over two-plus years, along with
two, recent oral arguments before this Court, see Case No. 2D13-3072 and Case No.
2D13-3078), the Bank may present other arguments as to why Fla. Stat. 559.715
does not justify reversal. Alternatively, this Court may have questions as to the
application of the statute in this context (which the Bank may not raise). Brindise
Palomino, Hon. Judy Biebel, Hon. J. Rodgers Padgett, Hon. Frank Gomez, Hon. Ray
Ulmer, and Hon. William McIver. Notably, this list includes every foreclosure
judge in both Hillsborough and Pinellas Counties except one, as all such judges have
agreed with the undersigned on this issue at least once. See Notice of Authority, 1.
22
address such issues in turn.
The Bank may contend it was not a “debt collector,” citing the definition set
forth in Fla. Stat. 559.55(6)(f). This would be a straw man argument. The term
“debt collector” is not set forth in Fla. Stat. 559.715, so it is not relevant in this
Court’s adjudication of this appeal. The question at bar, per the plain language of
Fla. Stat. 559.715, is whether mortgage foreclosure is an “action to collect a debt,”
not whether the person seeking such collection is a “debt collector.” Undoubtedly,
this is why this Court ruled, earlier this year, “the FCCPA applies not only to debt
collectors but also to any ‘person.’” Gann, 145 So. 3d at 910.
The Bank may contend Fla. Stat. 559.715 does not operate as a defense to the
filing of a lawsuit, as if to say it could ignore the plain language of the statute yet
still prevail. In other words, the Bank might contend Fla. Stat. 559.715 does not
operate as a “condition precedent” to foreclosure. Such a position would be
unavailing, for several reasons.
First, the only Florida DCA decision which has ever cited Fla. Stat. 559.715
plainly shows that a consumer must prevail where the requisite notice was not given.
Burt, 138 So. 3d at 1193. In Burt, the creditor plaintiff moved for summary
judgment, asserting it sent the notice required by Fla. Stat. 559.715, but the consumer
defendant denied such in an opposing affidavit. 138 So. 3d at 1194. The lower court
23
granted summary judgment, but the Fifth District reversed, deeming it a material
issue of fact whether the notice required by 559.715 had been given before filing
suit.13 Id.
If Fla. Stat. 559.715 did not require the creditor in Burt to give the notice
before filing suit, then the Fifth District would not have reversed on that basis. After
all, the issue of fact regarding the giving of notice would not have been material, and
certainly not a basis for reversal, because the notice, even if not given, could not
have changed the result of the case. Yes, the parties may have disputed whether the
559.715 notice was given (hence the conflicting affidavits), but if the notice was not
required, then Burt would not have reversed on that basis because the creditor would
have prevailed irrespective of whether it gave the notice. Clearly, the Fifth District
reversed because the giving of the notice before filing suit was required, and the
absence of such notice requires judgment for the consumer.14 Id. Here, the Bank
13 The Fifth District also reversed on a material issue of fact regarding identity,
i.e. whether the debt was actually the defendant’s debt or another person’s debt. Id.
It is clear, however, that the Fifth District also reversed given the question of fact
regarding compliance with the notice requirement of Fla. Stat. 559.715. Id. 14 Admittedly, Burt was not a mortgage foreclosure case. However,
Montgomery has already shown Fla. Stat. 559.715 applies in the mortgage
foreclosure context. See Argument, supra. Hence, Burt shows, contrary to what the
Bank may argue, the 559.715 notice must be given, failing which the consumer must
prevail. Were it otherwise, Burt would not have found the disputed issue of fact
24
failed to meet its burden of proving the requisite notice was given to Brindise, so the
Final Judgment at bar was erroneously entered.
Second, where a statute requires some type of notice be given before suit is
filed, Florida courts have regularly treated that notice obligation as a mandatory
“condition precedent” even where the legislature did not expressly call it such in the
statute. See Hallstrom v. Tillamook County, 493 U.S. 20 (1989) (treating 42 USCA
6972(b) as a condition precedent where the statute did not specifically indicate such);
Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979)
(regarding Fla. Stat. 768.28(6)); Neate v. Cypress Club Condo., 718 So. 2d 390 (Fla.
4th DCA 1998) (en banc) (regarding Fla. Stat. 718.1255(4)(a)); Freni v. Collier
County, 588 So. 2d 291 (Fla. 2d DCA 1991) (regarding Fla. Stat. 125.01014(4)(a)).
Hence, there is simply no basis to ignore Burt and conclude 559.715 is not a
condition precedent merely because the magic words “condition precedent” are not
contained in the statute. Where the notice had to be given 30 days before “any
action” to collect the debt, and mortgage foreclosure is an action to collect debt, see
Gann (particularly when precipitated by a paragraph 22 letter, see Birster, and
coupled with a claim for deficiency, see Freire), the notice had to be given 30 days
regarding the giving of the notice to be material and would not have reversed on that
basis. Id.
25
before filing suit. It is really that simple.
Third, a creditor’s failure to comply with the notice requirement in Fla. Stat.
559.715 does not justify a consumer’s filing of a civil lawsuit, so treating the notice
in a defensive manner, i.e. as a condition precedent, is the only way to enforce the
plain language of the statute.
In the undersigned’s experience, foreclosing plaintiffs such as the Bank like
to argue that Florida courts should not treat the notice requirement of Fla. Stat.
559.715 as a defense because a consumer’s remedy under the FCCPA is to sue for
violation thereof. Admittedly, many of the cases in the FDCPA and FCCPA context
do emanate from lawsuits initiated by consumers. See e.g. Gann, 145 So. 3d at 906
(reversing order granting creditor’s motion to dismiss a suit filed by a consumer for
the creditor’s violation of Fla. Stat. 59.72).
Cases where consumers brought suit, however, are predicated on violations of
Fla. Stat. 559.72, and the civil remedies statute of the FCCPA, Fla. Stat. 559.77,
specifically authorizes suit for a violation of that statute. To quote Fla. Stat. 559.77:
A debtor may bring a civil action against a person violating the
provisions of s. 559.72 in the county in which the alleged violator
resides or has his or her principal place of business or in the county
where the alleged violation occurred.
Fla. Stat. 559.77.
26
Conversely, the case at bar deals with a violation of Fla. Stat. 559.715, and
nothing in Fla. Stat. 559.77 or anything else within the FCCPA authorizes a
consumer to file suit for a violation of Fla. Stat. 559.715. This distinction is
dispositive.
If the legislature intended to allow consumers to file suit for violations of the
notice requirements of Fla. Stat. 559.715, it could have done so – just as it authorized
suits in Fla. Stat. 559.77 for violations of Fla. Stat. 559.72. The legislature’s
inclusion of express language in Fla. Stat. 559.77 authorizing suit for a violation of
Fla. Stat. 559.72 but not for a violation of Fla. Stat. 559.715 shows that lawsuits for
the former are permitted, but the latter are not. See Temple v. Aujla, 681 So. 2d
1198 (Fla. 5th DCA 1996) (“as the Second District correctly noted, where the
legislature has spoken by delineating a specific remedy, it is not the judicial branch's
role to overstep the legislature's authority and create an additional remedy”).
Once one concludes consumers cannot bring an offensive action, i.e. cannot
sue, for a creditor’s violation of Fla. Stat. 559.715, the obvious question becomes
“what is the remedy?” The only answer, of course, is to treat the notice obligation
in Fla. Stat. 559.715 as a defense, i.e. a mandatory condition precedent. Any
contrary ruling would mean consumers could not sue yet could not assert the notice
violation as a defense, either – leaving them without a remedy.
27
The legislature does not write meaningless statutory provisions, and courts
must avoid interpreting statutes in such a way that portions of the statute would be
rendered meaningless. See State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) (“A
basic rule of statutory construction provides that the Legislature does not intend to
enact useless provisions, and courts should avoid readings that would render part of
a statute meaningless.”); Fla. Dept. of Revenue v. Fla. Municipal Power Agency,
789 So. 2d 320, 324 (Fla. 2001) (“A court's function is to interpret statutes as they
are written and give effect to each word in the statute.”). Here, this Court must
construe the notice requirement of Fla. Stat. 559.715 as a defense, as any contrary
ruling would leave consumers such as Brindise without a remedy for a violation
thereof. See Smith v. Piezo Tech. and Prof. Administrators, 427 So. 2d 182, 184
(Fla. 1983) (“It must be assumed that a provision enacted by the legislature is
intended to have some useful purpose”). As this Court ruled in the context of an
FCCPA claim:
[C]ourts will not interpret a statute in such a way as to render portions
of it meaningless. If section 559.72(7) and/or section 559.72(9) were
interpreted to require a consumer debt collector to affirmatively
disclose identifying information to a Florida consumer without a
request from the consumer, this would render section 559.72(15),
which requires the disclosure of this information only upon request,
meaningless. We will not support such an interpretation. When, as here,
the FCCPA contains a specific provision addressing the conduct at
issue, a trial court may not ignore the FCCPA's plain language.
28
Read v. MFP, Inc., 85 So. 3d 1151, 1154 (Fla. 2d DCA 2012).
As this Court adjudicates the issue at bar, it should bear in mind the context
in which it is ruling. The FCCPA, Fla. Stat. 559.715 is a “consumer protection
statute,” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185 (11th Cir. 2000), and,
under a long line of cases, must be “liberally construed” in favor of Brindise. See
e.g. Legg v. Voice Media Group, Inc., 990 F.Supp. 2d 1351 (S.D. Fla. 2014) (“a
consumer protection statute … should be construed liberally in favor of
consumers”). The liberal construction of FCCPA statutes is why Florida courts do
things like employ a “least sophisticated consumer” standard. LeBlanc, 601 F.3d at
1194. In the words of the Eleventh Circuit, the very “goal” of the FCCPA is “to
provide the consumer with the most protection possible.” Id. at 1192 (citing Fla.
Stat. 559.552 (“In the event of any inconsistency ... the provision which is more
protective of the consumer or debtor shall prevail.”)). Particularly with this liberal
construction, there is no way to conclude Fla. Stat. 559.715 does not apply to the
facts at bar.
Once this Court concludes Fla. Stat. 559.715 applies, it is easy to see why
reversal and remand with instructions to dismiss without prejudice is the only
appropriate result. After all, the Bank introduced no evidence to satisfy its burden
29
of proving it gave Brindise the 559.715 notice,15 and the only witness at trial
admitted there was no notice. This Court should rule accordingly and remand with
instructions to dismiss.16
15 Another issue that often arises in the 559.715 context is whether the notice
must be “given” or need only be “sent.” That distinction is irrelevant here because
the Bank did not prove it “gave” a notice or that it “sent” a notice. However, to the
extent this Court writes an opinion on Fla. Stat. 559.715, it should clarify that the
obligation is to “give” notice.
The legislature could have written Fla. Stat. 559.715 to require the creditor
“send” a notice. It did not. Instead, the plain language of the statute requires
creditors like the Bank “give” notice. Where the plain language of the statute
requires the notice be “given,” this Court should not impart a lesser/different
obligation.
The Bank may point to paragraph 15 of the Mortgage in support of an
argument that the 559.715 notice need only be “sent.” Any such contention must
fail. After all, paragraph 15 of the Mortgage only applies to notices required under
the terms of the Mortgage (not any notice; only notices required by the Mortgage).
R.212-213.
By way of example, the notice required by paragraph 22 of the standard,
Fannie Mae mortgage need only be “sent” because that notice is required by the
terms of the mortgage, so paragraph 15 applies to that type of notice. Conversely,
the notice required by Fla. Stat. 559.715 is a statutory obligation, not an obligation
in the Mortgage, so it is not modified by paragraph 15. As a result, the Bank was
plainly required to “give” notice, as the plain language of Fla. Stat. 559.715 requires
(not send, “give”). 16 Where a plaintiff fails to introduce evidence at trial proving it complied with
a condition precedent, dismissal is the proper remedy on remand. See Boultbee, 595
So. 2d at 986 (reversing final judgment and remanding with instructions to dismiss
because plaintiff introduced no evidence at trial to prove compliance with condition
precedent). Moreover, established precedent in the foreclosure context prevents the
Bank from getting a new trial, i.e. a second bite at the apple, given its failure of proof
at trial. See Lacombe v. Deutsche Bank Nat’l Trust Co., 149 So. 3d 152 (Fla. 1st
DCA 2014) (reversing final judgment of foreclosure and remanding with
30
Even in 2015, Florida courts remain flooded with foreclosures. Hence, the
undersigned could understand if this Court were hesitant, for pragmatic reasons, to
write a written opinion that could be viewed as creating another hurdle for lenders
to jump through before foreclosing. Such pragmatic concerns, however, cannot
carry the day. After all, judges must enforce statutes as they are drafted, irrespective
of how they may feel about the results. This Court should not “legislate from the
bench.”
That said, to the extent this Court harbors such pragmatic concerns, the
undersigned respectfully submits it should rest easy. The undersigned has been
arguing the 559.715 issue so extensively, for so long, and with so much success that
foreclosing lenders typically introduce the 559.715 notice at trial as a matter of
routine. Frankly, it’s often a matter of simply printing one letter from the bank’s
business records. Moreover, unlike the paragraph 22 issue, there are no arguments
instructions to dismiss where the lender failed to prove standing at trial); Wolkoff v.
American Home Mortg. Servicing, Inc., Case No. 2D12-6460 (Fla. 2d DCA 2014)
(“we see no reason to afford AHMSI a second opportunity to prove its case.”);
Correa v. U.S. Bank, N.A., 118 So. 3d 952 (Fla. 2d DCA 2014). That is particularly
so here, where: (i) Brindise had been litigating the 559.715 issue throughout the case,
including via a lengthy summary judgment motion with case citations, so her raising
of the issue at trial was hardly a surprise; and (ii) the Bank did not ask the lower
court to re-open the case after Brindise moved for an involuntary dismissal based on
its failure of proof.
31
regarding the content of the 559.715 notice and whether it contains the requisite
information – the notice was either given or it was not. In any event, again,
pragmatic concerns cannot carry the day here, particularly in the face of this Court’s
own precedent, see Gann, and a consumer protection statute with such clear
language.
CONCLUSION
In light hereof, and for all of the foregoing reasons, this Court should reverse
the Final Judgment of Foreclosure and remand with instructions to dismiss the case
without prejudice. In so ruling, this Court should issue a written decision clarifying
that the notice requirements of Fla. Stat. 559.715 apply in the mortgage foreclosure
context and preclude foreclosure where not satisfied.
32
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via electronic mail to Morgan L. Weinstein, Esq., Van Ness Law Firm,
PLC, [email protected], on this 16th day of January, 2015.
___/s/ Mark P. Stopa
Mark P. Stopa, Esquire
FBN: 550507
STOPA LAW FIRM
2202 N. Westshore Blvd., Suite 200
Tampa, FL 33607
Telephone: (727) 851-9551
ATTORNEY FOR APPELLANTS
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the font used in this brief is Times New Roman
14-point, in compliance with Fla.R.App.Pro. 9.210(a)(2).
___/s/ Mark P. Stopa
Mark P. Stopa, Esquire
FBN: 550507