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.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
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 generally understood 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 effect at the
time the judgment appealed was rendered." Hendeles
v. Sanford Auto Auction, Inc., 364 So.2d 467, 468 (Fla.
1978). On remand, the trial court shall enter judgment in
favor of Appellant and against Appellee in accordance with
the evidence offered at trial.
AND REMANDED WITH INSTRUCTIONS.
and LAMBERT, JJ., concur.