U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Appellant,
Patricia Maria Cozza LEIGH a/k/a Patricia M. Leigh a/k/a Patricia Leigh, Appellee.
Denied May 11, 2020.
from the Circuit Court for Brevard County, Lisa Davidson,
J. Cantor, and Ronald M. Gache, of Shapiro, Fishman & Gache,
LLP, Boca Raton, for Appellant.
Bowin, of Bowin Law Group, Indialantic, for Appellee.
U.S. Bank Trust, N.A., as Trustee for LSF9 Master
Participation Trust, argues that the trial court erred in
dismissing Appellant's foreclosure action and entering
judgment in favor of Appellee, Patricia Leigh. In so ruling,
the trial court agreed with Appellee's position that the
demand/default letter, which Appellant undeniably sent to
Appellee, failed to substantially comply with the
requirements of paragraph twenty-two of the mortgage. We
reverse for two reasons. First, we find that Appellant was
authorized by the mortgage to include its attorney's fees
and litigation costs incurred in a previously dismissed
foreclosure case against Appellee in the demand/default
letter as part of
the cure amount. Second, there was a posttrial change in the
law, making it clear that lenders and their assigns are
entitled to recover unpaid installment mortgage payments that
were more than five years' past due when the
demand/default letter was sent.
2004, Appellee borrowed $140,000 from Bank of America, which
was evidenced by a promissory note and secured by a mortgage.
Because Appellee failed to make the April 2010 installment
payment, the lender sent her a demand/default letter and
later filed a foreclosure action in 2010 that was ultimately
dismissed in May 2015. In July 2015, the holder of
Appellee's note sent her a demand/default letter,
pursuant to paragraph twenty-two of the mortgage, which
advised Appellee that her right to cure the default and
reinstate the mortgage, as provided by paragraph nineteen,
depended upon her paying the sum of $86,865.59 ("cure
amount") within thirty days. When payment of the cure
amount was not forthcoming, the current foreclosure action
was filed in January 2016, once again alleging that the note
was in default because Appellee failed to pay the April 2010
installment and all subsequent installments.
raised numerous defenses in her answer, but only the
following are at issue in this appeal. Generally, Appellee
claimed that the cure amount set forth in the paragraph
twenty-two demand/default letter was inaccurate and
impermissibly sought payment of money for (1) the
lender's attorney's fees and expenses from the 2010
foreclosure suit and (2) missed installment payments that
were more than five years past due when the paragraph
twenty-two letter was sent and when suit was filed.
there was limited evidence presented at trial, it was clear
that Appellant included attorney's fees and litigation
expenses of $10,305.59, apparently incurred by Appellant or
its predecessor related to the 2010 foreclosure that was
dismissed. Paragraph nineteen of the mortgage
provides that in order for Appellee to reinstate the
mortgage, she would be required to pay the lender all sums
then due and all expenses incurred in enforcing the mortgage,
including reasonable attorney's fees and specified
foreclosure litigation expenses. According to the plain
language of the mortgage, Appellant was not required to be
the prevailing party in the first foreclosure action in order
to seek and recover its attorney's fees and expenses.
See Maw v. Abinales, 463 So.2d 1245, 1247 (Fla. 2d
DCA 1985) (holding that even if borrower had been successful
in preventing foreclosure by lender due to default by
borrower, lender was still entitled by mortgage to seek and
recover its reasonable attorney's fees because a default
had occurred). Because Appellant was entitled to seek and
recover the $10,305.59 representing its attorney's fees
and litigation expenses from the first foreclosure action, we
find that the trial court erred in ruling Appellant's
demand/default letter was non-compliant with paragraph
twenty-two of the mortgage.
the trial court ruled that Appellant's default/demand
letter was fatally inaccurate and non-compliant with
paragraph twenty-two of the mortgage because it included
approximately $12,000 representing missed installment
payments that were more than five years past due when the
letter was sent. At the time of trial, the law in Florida was
to have been that lenders could only seek and recover for
installment payments that were less than five years past due,
based upon the application of the statute of limitations set
forth in section 95.11(2)(b)-(c), Florida Statutes (2016).
However, as Appellant argues and Appellee commendably
concedes, the law on this point has been evolving. The
Florida Supreme Court's opinion in Bartram v. U.S.
Bank National Ass'n,211 So.3d 1009, 1019 (Fla.
2016), could be read to say that a lender has the right to
accelerate all sums due, even those installments that had
remained unpaid for more than five years, as long as a
default date pled and proved was within five years of when
the complaint was filed. Our opinion in Grant v. Citizens
Bank, National Ass'n,263 So.3d 156, 158 (Fla. 5th
DCA 2018), clearly states that a lender can recover for
unpaid installments more than five years past due. We are
compelled to reverse because the law changed posttrial, and
"disposition of a case on appeal should be made in
accord with the law in effect at the time of the appellate
court's decision rather than the law in ...