Brindise v. U.S. Bank National Association
183 So. 3d 1215
| Fla. Dist. Ct. App. | 2016Background
- Brendan and Suzanne Brindise obtained a residential mortgage and note in 2005; they defaulted in 2010.
- Countrywide originated the loan; U.S. Bank later acquired the note by assignment (blank indorsement) and became mortgage assignee and note holder.
- U.S. Bank filed foreclosure in 2012 as holder of the note; its amended complaint stated the suit was an attempt to collect a debt.
- Brindises asserted as a defense that U.S. Bank failed to provide written notice of assignment at least 30 days before suing, as required by Fla. Stat. § 559.715.
- The trial court rejected that defense and entered final foreclosure judgment; the Second District affirmed, holding § 559.715 notice is not a condition precedent to foreclosure.
Issues
| Issue | Brindises' Argument | U.S. Bank's Argument | Held |
|---|---|---|---|
| Whether written notice of assignment under § 559.715 is a condition precedent to filing a foreclosure (i.e., an "action to collect a debt") | § 559.715 requires assignee to give debtor written notice at least 30 days before any action to collect the debt; failure to do so bars foreclosure | Foreclosure enforces a security interest and need not be preceded by § 559.715 notice; statute lacks language making notice a condition precedent; holder who owns the note/mortgage may sue | Notice under § 559.715 is not a condition precedent to filing a foreclosure by the note holder; trial court affirmed |
| Whether contract terms (mortgage para. 20 and 22) and existing FCCPA remedies affect § 559.715 applicability | § 559.715 applies to consumer debts regardless of mortgage terms; administrative remedies are inadequate substitutes | Mortgage paragraph 20 permits transfer without prior notice; paragraph 22 prescribes default/acceleration notice; FCCPA provides other administrative/private remedies | Paragraphs 20 and 22 and the note-holder status support conclusion that § 559.715 notice does not bar foreclosure; alternative remedies and contractual notice reduce need to treat § 559.715 as a condition precedent |
Key Cases Cited
- W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1 (Fla. 2012) (standard of review for statutory interpretation is de novo)
- Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) (foreclosure-related filings can constitute debt-collection activity under FDCPA)
- Glazer v. Chase Home Fin. LLC, 704 F.3d 453 (6th Cir. 2013) (mortgage foreclosure is debt collection under FDCPA analysis)
- Gann v. BAC Home Loans Servicing LP, 145 So.3d 906 (Fla. 2d DCA 2014) (FCCPA claim can be stated for prelitigation harassing debt-collection practices)
- Creadon v. U.S. Bank N.A., 166 So.3d 952 (Fla. 2d DCA 2015) (note holder has right to foreclose)
- Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011) (holder of the note may foreclose)
- Singleton v. Greymar Associates, 882 So.2d 1004 (Fla. 2004) (characterizing the unique nature of mortgage obligations)