Foreclosure AppealsForeclosure Defense Florida

Foreclosure Abuse: Homeowners in Modification, Bank of America Forecloses Anyway!

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This happens over and over again in foreclosure. The bank provides a modification to the consumer. The consumer accepts and begins making payments on that modification, but the bank either continues to drag out the temporary modification payments and terms or refuses to provide any terms at all.

In this case, the appellate court reversed a foreclosure when a valid modification was in existence. The case reminds us (once again) how important it is to think very carefully before entering into a mortgage modification.

II. EVIDENCE ESTABLISHED A VALID AGREEMENT TO MODIFY LOAN
We conclude that there was a valid modification agreement between BAC and the Nowlins and, therefore, the trial court erred in entering the judgment of foreclosure. “A contract is made when the three elements of contract formation are present: offer, acceptance, and consideration. No person or entity is bound by a contract absent the essential elements of offer and acceptance.” 11 Fla. Jur. 2d Contracts ยง 25 (2016) (footnotes omitted).

Further, “[w]ith a bilateral contract such as the one in this case, acceptance is the last act necessary to complete the contract.” Pezold Air Charters v. Phoenix Corp., 192 F.R.D. 721, 725 (M.D. Fla. 2000). “Pursuant to contract law, the acceptance of an offer which results in an enforceable agreement must be (1) absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer.” Gillespie v. Bodkin, 902 So. 2d 849, 850 (Fla. 1st DCA 2005).

BAC specifically defined what actions would constitute an acceptance of its offer to modify the mortgage contract. The Nowlins were required to sign and return the documents provided by BAC, and they were required to make three monthly payments beginning on October 1, 2009. The Nowlins testified that they returned the signed documents in the Federal Express envelope provided by BAC, and they produced a receipt from Federal Express indicating that the envelope was shipped on August 17 and that it was received on August 18, 2009.

At trial, Nationstar did not dispute the contents of the July 28 letter, the fact that a Federal Express envelope was enclosed to facilitate the return of the loan documents, or the fact that Federal Express delivered a package to a Pittsburgh address and its Home Retention Division address is 100 Beecham Drive, Suite 104, Pittsburgh, Pennsylvania. Rather, its default specialist testified that Nationstar had no record of receiving the loan modification documents. Therefore, it contended, the Nowlins must not have returned the loan modification documents. We do not find merit in this argument, because it was the mailing of the documents that constituted an acceptance of the offer, not whether Nationstar’s records showed that the documents were received.

Finally, the evidence reflected, without contradiction, that subsequent to the mailing of the loan modification documents, the Nowlins tendered three consecutive monthly payments in the amount required by BAC. Nationstar’s witness confirmed that each of the Nowlins’ three payments had been received and accepted. When a party accepts the benefits under a contract, courts must ratify the contract even if that party contends that it had a contrary intent.

Thus, by accepting the benefits of the loan modification, Nationstar cannot now question the validity of the contract. Having entered into a valid modification agreement, Nationstar could only foreclose by alleging and proving a breach of the modification agreement and neither of which was done here. See Kuehlman v. Bank of Am., N.A., 177 So. 3d 1282, 1283 (Fla. 5th DCA 2015).

2D15-331

 

 

 

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