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Opinion Could Impact Foreclosure Defense Strategies

Foreclosure decision impacts future cases
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On May 8th, Florida’s Fifth District Court of Appeals shocked many with its decision stating that a bank’s failure to perfectly follow certain foreclosure guidelines does not mean that the contract should become void.

The judge’s statement refers to the use of a popular foreclosure defense that has proven successful in circuit courts throughout Florida. This particular defense is based on a requirement that lenders must strictly follow to notice the borrower. This procedure set forth in paragraph 22 of most mortgages.

The case: 

Gorel v. Bank of New York Mellon, 5D13-3272 (Fla. 5th DCA May 8, 2015)

The decision: 

This case was affirmed, meaning that the appellate judge agreed with the decision made by the trial court judge in favor of the borrower. However, the decision was based on two separate factors; the one the appellate court disagreed with is causing a commotion. 

Paragraph 22 of most mortgages specifies the procedures that lenders and servicers must follow with the notice of default. In this particular case, the borrower’s attorney argued that the lender only gave the delinquent borrower 29 days to cure the default, but paragraph 22 clearly states that they must allow at least 30 days before accelerating the foreclosure. In the defense used, failure to follow the details exactly rendered the notice defective. However, on appeal, the Court held that “absent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an otherwise valid contract.”

What this means for foreclosure cases in Miami-Dade, Broward and Palm Beach counties:

The 5th District Court of Appeals does not preside over these specific counties, so this particular opinion from the appeals panel will not necessarily directly affect trial-level courts in the area. However, opinions from neighboring districts can be brought up during an argument in another district to persuade the court towards making a similar decision. 

An inexperienced foreclosure defense attorney may rely on common defenses to have a case dismissed in favor of the borrower. At Graham Legal, we use valid defenses to support our defense strategy. While the foreclosure is in process, we also work with our clients towards an ultimate goal of keeping them in their home.

If you are currently represented by a Miami foreclosure defense attorney that isn’t strategizing to the degree that you feel is suitable, please make an appointment with one of our attorneys so that we may evaluate your case and advise you on how to proceed. 

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