The failure to provide written notice under section Fla. Stat. § 559.715 did not bar the Mortgagee’s foreclosure suit, nor did it create a condition precedent to the institution of the foreclosure suit.
B. Procedural Posture & Facts
U.S. Bank foreclosed on a mortgage and note held by the Brindises. At the conclusion of a nonjury trial, the Court entered a final foreclosure judgment in favor of the Bank. The Brindises as mortgagors appealed claiming that that the trial court erroneously entered final judgment because, prior to filing suit, U.S. Bank failed to give written notice of assignment pursuant as required by Fla. Stat. § 559.715.
The Brindises, Appellants/Mortgators, appealed to the Second District Court whether trial court erroneously entered final judgment because, prior to filing suit, the Appellee/Mortgagee, U.S. Bank, failed to provide written notice of the assignment of their mortgage loan as required by Fla. Stat. § 559.715.
Fla. Stat. § 559.715 provides in part:
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. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default….
The DCA failed to rule whether an effort to collect on a defaulted mortgage is or is not an attempt to collect a consumer debt. Appellant contended that foreclosure is an enforcement of a security instrument and not a debt while the Appellee argued that it is a collection of a consumer debt. Rather, the DCA noted that the Legislature failed to provide precise language specifying that the notice as a “condition precedent,” and the language of the statute was open ended meaning that the assignee alone was not the only real party in interest.
The statue prohibited specified debt collection practices, however, the Appellants failed to allege any specific wrongful conduct by the Appellee, and the Court was unwilling to apply the statute to “immunize” an alleged violator. The mere filing of a foreclosure suit, even one seeking money damages, alone did not trigger an egregious debt collection activity. The note at issue specifically provided that the lender could transfer the note without prior notice to them, and as a matter of simple contract, the statue was inapplicable.
Based on the “innumerable foreclosure cases” pending in the trial and district courts where defendants have raised the statute as a defense, the Second District certified the following question to the Florida Supreme Court:
IS THE PROVISION OF WRITTEN NOTICE OF ASSIGNMENT UNDER SECTION 559.715 A CONDITION PRECEDENT TO THE INSTITUTION OF A FORECLOSURE LAWSUIT BY THE HOLDER OF THE NOTE?