WILLIAM VON KUEHLMAN, APPELLANT,
v.
BANK OF AMERICA, N.A., ETC., APPELLEE
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A Florida appellate court reversed a mortgage foreclosure judgment, holding that the borrower validly modified his mortgage despite late acceptance and late payments. The court found that the borrower's late acceptance constituted a counteroffer, which the lender impliedly accepted by accepting nine months of modified payments, thereby creating a binding modification agreement.
The borrower's late acceptance of the modification constituted a counteroffer that the lender impliedly accepted by accepting nine monthly payments in the modified amount and maintaining silence over many months. Because the parties entered a valid modification agreement, the lender could only foreclose by alleging and proving a breach of the modification agreement, not the original mortgage.
[1] A late acceptance of a contract offer operates as a counteroffer.
[2] A party accepts a counteroffer by a combination of silence and acceptance of payments made pursuant to the counteroffer.
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Join FLexlaw to unlock all legal intelligence“Acceptances can turn into counteroffers either by adding additional terms or not meeting the terms of the original offer.”
Establishes that the borrower's late acceptance constituted a counteroffer rather than a rejection
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Join FLexlaw to unlock all legal intelligenceThe lender offered the borrower a mortgage modification with a deadline for acceptance. The borrower executed and returned the agreement late, along w…
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William Von Kuehlman (“Borrower”) timely appeals a Final Judgment of Foreclosure in favor of Bank of America, N.A. (“Lender”).1 He raises five arguments, all of which rest on this Court’s legal determination of whether he entered into a valid modification of his mortgage. We agree that he did, and reverse the final judgment — which was premised upon the erroneous conclusion that the parties did not agree to modify the mortgage.
The following facts were established at trial by Lender’s representative and are not disputed. Lender offered Borrower a modification and the terms of the offer required him to accept it by a certain day. Borrower executed the agreement but returned it late, along with the first modified payment, which was also late. Borrower then made six additional payments in the modified amount, all of which were late, but which Lender accepted and deposited. At that point, Lender’s “investor” (Fannie Mae or Freddie Mac), which was not a party to the contracts, instructed Lender to “pull the plug on” (or “not accept”) the modification. Then, after accepting two additional modified payments, Lender accelerated the mortgage, gave Borrower an opportunity to cure based on the original mortgage, not the modification, and refused to accept additional modified payments. Lender sued alleging breach of the original note and mortgage.
Lender argues that no modification occurred because of Borrower’s late acceptance.2 However, Borrower’s late acceptance of the modification operated as a counteroffer. See 2 Williston on Contracts §§ 6:56-6:57 (4th ed., updated May 2015); see also Grant v. Lyons, 17 So.3d 708, 710-11 (Fla. 4th DCA 2009) (“Acceptances can turn into counteroffers either by adding additional terms or not meeting the terms of the original offer.”). On these undisputed facts, we conclude as a matter of law that Lender accepted the counteroffer by a combination of its many months of silence and its acceptance of nine monthly payments in the amount specified in the modification agreement. Grant; 17 So.3d at 710-11; see also 2 Williston on Contracts §§ 6.1-6.3 (4th ed., updated May 2015). As argued by Borrower, because the parties entered a modification agreement following Borrower’s alleged breach of the original mortgage, Lender could only foreclose by alleging and proving a breach of the modification agreement. It failed to plead that theory. Nor was the theory tried by consent.
REVERSED.
LAWSON, C.J., TORPY and BERGER, JJ., concur.
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Citator
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Nowlin v. Nationstar Mortg., LLC, 193 So. 3d 1043 (Fla. 2d DCA 2016)…n 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. 6th DCA 2016). III. FINAL JUDGMENT Although not raised by the parties, we are greatly concerned over the final judgment issued in this- case. The trial transcript reflects that the proceedings were heard before the Honorable Sandra Tay…
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The Bank of N.Y. Mellon v. Bloedel, 236 So. 3d 1164 (Fla. 2d DCA 2018)
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Rouffe v. Citimortgage, Inc., 241 So. 3d 870 (Fla. 4th DCA 2018)
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grant v. Lyons, 17 So. 3d 708 (Fla. 4th DCA 2009)
- Phantom OF Brevard, Inc. v. Brevard Cnty., 17 So. 3d 708 (Fla. 5th DCA 2009)