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» VISIT US ONLINE @ DSNEWS.COM 89 However, until there is a case in Florida which directly conflicts with this case, this case has the authority of a Florida Supreme Court case. In other words, it applies throughout the whole of the state of Florida unless and until there's a case that comes along and says this case is wrong. FLORIDA FOCUS: SECTION 559.715, F.S.: A DEFENSE TO MORTGAGE FORECLOSURE NO LONGER By Kelly A. Chida, Quintairos, Prieto, Wood & Boyer, P.A. In Florida's rapidly changing body of foreclosure case law, there has been a recent trend among defense counsel to cite a lender's noncompliance with s. 559.715, F.S., as a defense to foreclosure. In some circuits, this has been successful. However, a recent Second District Court of Appeals opinion has provided clarifi- cation on how this statute should be interpreted by Florida Courts. e Statute Section 559.715, F.S., a part of the "Florida Consumer Collection Practices Act," or the "FCCPA," provides that in assigning consumer debts, "the assignee must give the debtor writ- ten notice of such assignment as soon as practi- cal after the assignment is made, but at least 30 days before any action to collect the debt." e Defense Foreclosure defendants allege that, based on the language of s. 559.715, F.S., a Plaintiff filing a mortgage foreclosure complaint must show compliance with this section by notifying the consumer within thirty days of an assignment of debt. e argument is not only that a mort- gage foreclosure is a collection of a consumer debt which is subject to the FCCPA, but also that compliance with this section is a condition precedent to filing a foreclosure. e Response To rebut this allegation, Plaintiffs would typically respond in three ways. First, Plaintiffs argued that s. 559.715, F.S., does not apply to the foreclosure of a mortgage, rather, it applies to the collection of consumer debts. ere is a body of case law that stands for the proposition that a mortgage foreclosure is not a collection of a consumer debt. Second, it would be argued that compli- ance with s. 559.715 is not a condition precedent to foreclosure. Even if Plaintiff is subject to the provisions of the FCCPA when filing a mortgage foreclosure complaint, sending such notice is not a prerequisite to a foreclosure action. ere were several circuit court cases that discussed this. In the Lord, case, the sixth circuit court discussed s. 559.715, F.S., in depth, and stated, "[i]n conclusion, this court finds that F.S. 559.715 does not mandate the dismissal of a foreclosure case even if an assignee of a note failed to give notice of the assignment prior to filing the action." In Vila, a thirteenth circuit case, the Court stated that, "there is nothing in the language of the statute to suggest that F.S. 559.715, was also intended to create a condition precedent to the ability of a lender to commence an action to enforce a mortgage obligation." ird, in response to the s. 559.715, F.S., defense, Plaintiff's counsel would simply produce the servicing transfer letters at trial or in response to a dispositive motion. However, these letters are sometimes not available from every loan servicer transfer. e Case Law Developments In considering the competing arguments, some courts ruled that s. 559.715, F.S., is a con- dition precedent to foreclosure and dismissed foreclosure complaints if compliance was not shown. After several lower court opinions ruling that s. 559.715, F.S., is not a prerequisite to foreclosure, the second district court of appeals issued a definitive ruling in Brindise on January 20, 2016. In Brindise, the Court ruled that compliance with s. 559.715, F.S., is not a prerequisite to foreclosure. e Court in that case held that, "Mortgagee's foreclosure lawsuit was not subject to voluntary dismissal based on mortgagee's failure to provide written notice of the assignment of mortgage at least 30 days prior to filing foreclosure lawsuit; statute that required an assignee to provide written notice of assignment of a debt at least 30 days before any action to collect on the debt did not contain language making written notice a condition precedent to a lawsuit…" Id. In line with Brindise, the Court in Hagstrom held that "absent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an otherwise valid contract," and that "the note holder was not required to provide mortgagors with 30 days notice before bringing action to collect a debt." e Court in Hagstrom discussed what Plaintiffs' attorneys had been arguing all along, specifically, non-compliance with s. 559.715, F.S., in a mortgage foreclosure does not prejudice or otherwise damage a defendant. Although Brindise did not address the question of whether a mortgage foreclosure is an attempt to collect a debt pursuant to the FCCPA, it gives us a definitive ruling that 559.715, F.S. is not a condition precedent to foreclosure. 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Larry Shapiro, COO of Silver Bay Realty Trust, said, "By offering portfolio owners a place to manage the disposition of their real estate investments, OwnAmerica is creating a steady flow of quality inventory for sale, which is good for the health of the market." e total value of the SFR market exceeds $3 trillion, and shelters more than 12 percent of the households in the U.S. e National Associa- tion of Realtors reports that 22 percent of all home sales, or over 1 million sales each year, are attributable to investors. e volume and value of the market is comparable in size to the other real estate asset classes in commercial real estate.

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