Earlier this month, the United States District Court for the Southern District of Florida in Summerlin Asset Mgmt. V Trust v. Jackson decided an issue of first impression regarding whether compliance with Florida Statute section 559.715 is a condition precedent to the commencement of a mortgage foreclosure action. The section is a provision of the Florida Consumer Collection Practices Act (FCCPA)—the Florida counterpart to the Fair Debt Collection Practices Act (FDCPA). Although the Court’s decision on that issue was a relatively minor portion of the opinion, the decision presents a major victory for mortgage servicers in the state of Florida.
Section 559.715 requires that the assignee of a debt “give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt.” In Jackson, the mortgage loan had been assigned numerous times, but the borrowers argued that they did not receive the required notice after any of the assignments and therefore summary judgment on the foreclosure claim was improper.
Ultimately, the borrowers cited no case law in support of their position. In granting the motion, Judge Robin L. Rosenberg relied, at least in part, upon the purpose of the FCCPA, which was enacted to “eliminate abusive and harassing tactics in the collection of debts,” not “to preclude a creditor . . . from invoking legal process to foreclose.” More importantly, Judge Rosenberg cited longstanding Florida statutory law and case law establishing that foreclosure is proper when the mortgagee is the holder of the note. Given the purpose of the FCCPA and the fact that Florida law establishes a right to foreclose in favor of the holder of the note—regardless of whether any notice of assignment was provided or even whether an assignment exists—the Court’s decision in Jackson is a common sense interpretation of the FCCPA and a clear victory for the mortgage servicing industry in the state of Florida.