January 7, 2016

When One Notice Is Enough: Fourth DCA Clarifies When Lender Is Required to Send New Notice of Default Before Filing New Suit Following Prior Voluntary Dismissal

Michael E. Sill a/k/a Michael Sill v. JP Morgan Chase Bank, National Association

Case No. 4D14-1014 (Fla. 4th DCA, January 6, 2016)*

The Fourth District Court of Appeal recently held that a mortgage lender was not required to send a borrower another notice of default before the lender filed a new foreclosure suit after the lender previously voluntarily dismissed its first suit.

The borrower executed a promissory note and mortgage on his property, and later defaulted on the loan. The lender sent the borrower a notice of default pursuant to language in the mortgage that required the lender to give such notice following the borrower’s breach and prior to acceleration of the loan. The lender filed a foreclosure complaint, which it later voluntarily dismissed. The lender then filed a new foreclosure complaint six weeks later based upon the same default. The lender sent no notice of default prior to filing the new foreclosure complaint.

On appeal from the final judgment of foreclosure, the borrower argued that the mortgage required the lender to once again give a notice of default before filing the new foreclosure complaint. The Fourth DCA disagreed. The Fourth DCA relied upon Kuper v. Perry, 718 So. 2d 859 (Fla. 5th DCA 1998), where the Fifth DCA held that a second pre-suit notice was not required where it would serve no practical purpose because the plaintiff filed a virtually identical complaint involving the same facts, relief, allegations and cause of action. The Fourth DCA distinguished its holding in Schindler v. Bank of N.Y. Mellon Trust Co., 40 Fla. L. Weekly D812, D813 (Fla. 4th DCA Apr. 8, 2015), stating that the holding in Schindler that a new notice is required before the second complaint is filed applies only where the dismissal of the first complaint is an adjudication on the merits.

The Fourth DCA noted that the complaint involved the same default as the prior complaint that was voluntarily dismissed, and “involved the same facts, relief, claimants, causes of action, and allegations.” The Fourth DCA held that the mortgage did not require a new notice of default. The Fourth DCA affirmed the final judgment of foreclosure. The ruling clarifies when a lender must provide a second notice of default, assuming a mortgage requires such a notice.

* The decision is not final until disposition of any timely filed motions for rehearing.