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Foreclosure Defense Florida

Default Letters in Foreclosure Cases, a Great Written Opinion


Steven and Esperanza Hatadis appeal the final summary judgment of
foreclosure entered in favor of Achieva Credit Union, arguing that the trial court erred in
finding that the Hatadises waived their right to a notice of default and thirty-day
opportunity to cure when they entered into a forbearance agreement. Because we
conclude that the Hatadises did not waive these rights, we reverse and remand for
further proceedings.

In December 2006, the Hatadises took out a mortgage with Achieva.
Paragraph twenty-two of the mortgage provided that prior to acceleration, Achieva was
required to give the Hatadises notice of the default and thirty days to cure it.1 A little
over two years after they began making payments on the mortgage, the Hatadises
entered into a forbearance agreement with Achieva providing for interest-only payments
for a six-month period (from June 1, 2009, to November 30, 2009).2 Paragraph six of
1Specifically, paragraph twenty-two provided that prior to acceleration, the
lender must give the borrower notice stating (a) the default; (b) the action required to
cure the default; (c) a date within thirty days of the date the notice is given to the
borrower by which the default must be cured; and (d) that failure to cure the default on
or before the date specified in the notice may result in acceleration, foreclosure, and
sale of the property. The notice must also inform the borrower of the right to reinstate
after acceleration as well as the right to assert defenses in the foreclosure proceedings,
including the nonexistence of a default.

Achieva filed a foreclosure complaint against the Hatadises in December
2011. The Hatadises argued as an affirmative defense and later in their motions for
summary judgment that Achieva had failed to comply with the specific requirements of
paragraph twenty-two of the mortgage. Specifically, the Hatadises pointed out that
paragraph twenty-two required Achieva to give them thirty days to cure the default
before acceleration but that instead the October 2011 letter stated the loan had already
been accelerated and the default needed to be cured immediately. The court denied
Mr. Hatadis’s motion for summary judgment, determining that “paragraph 6 of the
Forbearance Agreement signed by [Mr. Hatadis] waived the necessity for [Achieva] to
comply with paragraph 22 of the mortgage concerning the default and acceleration
notice.” Ultimately, the court granted summary judgment in Achieva’s favor, and the
Hatadises filed this appeal challenging the circuit court’s determination that they waived
their right to notice under paragraph twenty-two of the mortgage when they signed
paragraph six of the forbearance agreement.

“When interpreting a contract, the court must first examine the plain
language of the contract for evidence of the parties’ intent.” Murley v. Wiedamann, 25
So. 3d 27, 29 (Fla. 2d DCA 2009). The goal in construing the contract language is to
reach a reasonable interpretation of the entire agreement in order to accomplish its
stated purpose and meaning. Id. “[W]here one interpretation of a contract would be
absurd and another would be consistent with reason and probability, the contract should
be interpreted in the rational manner.” BKD Twenty–One Mgmt. Co. v. Delsordo, 127
So. 3d 527, 530 (Fla. 4th DCA 2012)).

Here, it is clear that the forbearance agreement, when examined in its
entirety, was not intended to waive the Hatadises’ right to notice outside of the sixmonth
period from June 1, 2009, to November 30, 2009. The agreement first states
that the Hatadises requested interest-only payments for this six-month period and that
Achieva was willing to give them this reduction in payments. In paragraph two, the
agreement clarifies that the “parties agree that a forbearance period from June 1, 2009
[through] November 30, 2009 is appropriate.” Paragraph three sets the exact amount
that the Hatadises were to pay “[d]uring the period of forbearance,” and paragraph four
states that the Hatadises would resume their regular monthly payments “[u]pon
expiration of this forbearance, on December 1, 2009.”

Considering these preceding paragraphs, it becomes clear that the waiver
of notice found in paragraph six was only intended to apply during the six-month
forbearance period. Indeed, the language of paragraph six at issue reflects just that:
“Borrowers acknowledge that no further notice of default is necessary and any
additional notice of default of this agreement is hereby waived.” (Emphasis added.)
Paragraph six also states that “[a]ll other terms and conditions of the original Note and
Mortgage remain in full force and effect other than the change in terms of payment
during the forbearance period as provided in this agreement.” Taken together, the two
sentences in paragraph six indicate that once the forbearance agreement expired on
December 1, 2009, Achieva was again required to provide notice of default under
paragraph twenty-two of the mortgage. Moreover, the record shows that in response to
the Hatadises’ request for admissions, Achieva admitted that the October 2011 letter
was intended as notice pursuant to paragraph twenty-two of the mortgage. This
admission belies Achieva’s position that no notice was necessary.
In sum, we conclude that the waiver of notice found in paragraph six of the
forbearance agreement only applied during the six-month period of that agreement and
no longer applied once it had been completed. To hold otherwise would allow the
waiver found in the six-month forbearance agreement to apply for the remainder of the
thirty-year mortgage; such an interpretation would be unreasonable. And though the
trial court did not reach the question of whether Achieva’s October 2011 letter complied
with paragraph twenty-two of the mortgage, we note that the Hatadises’ argument on
this issue may have merit and should be addressed on remand. We reverse and
remand for further proceedings consistent with this opinion.
Reversed and remanded for further proceedings.
WALLACE and SLEET, JJ., Concur.,%202015/2D13-5349.pdf





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