Green Tree Servicing, LLC v. Milam

Summary

The Florida Second District Court of Appeal held that a lender’s default notice substantially complied with the notice requirements in paragraph 22 of the mortgage. The court concluded that the notice adequately informed the borrowers of the default, cure requirements, potential acceleration and foreclosure, reinstatement rights, and the right to assert defenses. It reversed the borrowers’ summary judgment in the residential foreclosure action.

Holdings

1. A lender's compliance with paragraph twenty-two's preforeclosure notice requirements is evaluated under substantial compliance or substantial performance, not strict compliance. A notice substantially complies when it is nearly equivalent to the mortgage's requirements or varies only in immaterial respects; a variation going to the essence of the parties' bargain is material and defeats the condition precedent.
2. The notice substantially complied with paragraph twenty-two by stating that the borrowers may have the right to reinstate and may have the right to assert the nonexistence of default or other defenses in foreclosure proceedings.
3. The notice complied, or at least substantially complied, with paragraph twenty-two despite identifying the first missed payment rather than listing every missed payment, including the January 1, 2009, installment in the cure amount, and not specifying a mailing address for payment.

Questions Presented

1. Whether the lender's December 10, 2008, default notice substantially complied with paragraph twenty-two of the mortgage.
2. Whether the notice adequately informed the borrowers of their conditional right to reinstate and their right to assert the nonexistence of default or other defenses in foreclosure proceedings.
3. Whether the notice was deficient because it did not list every missed payment, included a payment not yet due when the notice was sent, or failed to specify the address to which payment should be sent.
4. Whether the borrowers were entitled to summary judgment based on any of these alleged notice defects.

Disposition

reversed_and_remanded