- The Fifth DCA recently reversed a judgment entered in favor of a borrower, Leigh, against its mortgagee, US Bank. S. Bank Trust, N.A., as Trustee for LSF9 Master participation Trust v. Patricia Maria Cozza Leigh, Case No. 5D17-2967, 44 Fla. L. Weekly D2914 (Fla. 5th DCA December 6, 2019). In Leigh, the trial court found the bank failed to satisfy conditions precedent because its demand letter included installment payments that were more than five years old and its attorney’s fees and costs from a prior unsuccessful foreclosure. The trial court concluded the inclusion of these amounts was improper and rendered the demand letter deficient to satisfy conditions precedent.
- The Fifth DCA disagreed explaining that the current state of the law allowed a lender to “recover for unpaid installments more than five years past due.” The Court also found that based on the plain language of the mortgage the mortgage did not require the bank to be the prevailing party in its prior foreclosure in order to recover fees and costs from that action. The Court concluded US Bank’s demand letter satisfied conditions precedent.
- Although this is a huge win for the industry, we anticipate future litigation on the fee issue and we’ll also provide updates if Leigh’s anticipated rehearing motion results in an alteration of this ruling.
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