MICHAEL E. SILL A/K/A MICHAEL SILL, APPELLANT,
v.
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, APPELLEE

Fla. 4th DCA | 2016-01-06
No. 4D14-1014
WARNER and FORST, JJ., concur.
182 So. 3d 851 Florida District Court of Appeal, Fourth District (2016) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Michael Sill appealed a foreclosure judgment entered against him by JPMorgan Chase Bank, challenging the bank's standing, proof of notice, and whether a second notice of default was required after Chase dismissed and refiled its foreclosure action. The court affirmed the judgment, holding that no new notice of default was required because the first suit was voluntarily dismissed without prejudice and involved the same default and facts.


Holding

No new notice of default was required because the first complaint was voluntarily dismissed without prejudice (and thus not an adjudication on the merits), the second complaint was based on the same July 1, 2009 default and involved the same facts, relief, claimants, and causes of action as the first complaint, and requiring a second notice of default would serve no practical purpose.


Headnotes

[1] A lender is not required to send a new notice of default before filing a second foreclosure complaint when the first complaint was voluntarily dismissed without prejudice…

[2] A voluntary dismissal of a foreclosure complaint without prejudice is not an adjudication on the merits.

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Key Quotes

“Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument”

This establishes the contractual requirement for notice of default under paragraph 22 of the mortgage.

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Facts & Procedural History

Sill executed a promissory note and mortgage on his property on April 2, 2007. He defaulted on the loan on July 1, 2009. Chase sent a notice of defaul…

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Opinion of the Court
STEVENSON, J.

*852STEVENSON, J.

■ Michael Sill appeals a final judgment of foreclosure entered in favor of JPMorgan Chase Bank (“Chase”). He raises three issues: (1) Chase lacked standing; (2) Chase failed to prove if, when, and how the notice -of default was sent; and (3) Chase was required to sepd a new notice of .default after it voluntarily dismissed the first suit and before it filed the second suit. We affirm on all issues, but write to address the third — whether a new notice of default was required.

On April 2, 2007, Sill executed a promissory note and mortgage on his property. He defaulted on the loan July 1, 2009. Chase sent, Sill a notice of default dated August 28, 2009, advising him he had thirty days to cure the default or the loan would be accelerated. This notice of default was required under paragraph 22 of the mortgage, which reads:

Lender shall give notice to Borrower ■ prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument — The notice shall specify:' '(a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to 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 of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

(emphasis added).

Sill did not cure the default, and Chase filed a foreclosure complaint against him in October of 2009. Chase voluntarily dismissed the foreclosure action on March 7, 2013, but six weeks later filed a second foreclosure complaint against Sill based on the same July 1, 2009 default.

Sill argues that paragraph 22 of the mortgage required Chase to mail a second notice of default before filing the second foreclosure action. We disagree.

The Fifth District addressed an analogous pre-suit notice issue in Kuper v. Perry, 718 So.2d 859 (Fla. 5th DCA 1998). There, Kuper sustained' an injury while exiting a sheriffs van at the county jail. Under section 768.28(6)(a), Florida Statutes, he was required to present his claim in writing before filing suit. Kuper, 718 So.2d at 860. In 1993, Kuper filed his pre-suit notice as required by the statute. He filed suit against the Sheriff and County Board of Commissioners in 1994. In 1996, he voluntarily dismissed his complaint without prejudice, but six days later refiled the lawsuit with a “virtually identical complaint.” Id. The Sheriff moved to dismiss the second suit, arguing that Kuper did not comply with the pre-suit notice requirement. The trial court granted the dismissal. The appellate court reversed, holding that, because “the 1994 and 1996 complaints do not involve different facts, different relief, a different claimant, a different cause of action, or new allegations,” there was no practical purpose in requiring an additional notice. Id. at 861.

We recognize we recently held that, where a complaint was dismissed with prejudice and was thus an adjudication on the merits, the bank was required to provide a new notice of default to support its second complaint. Schindler v. Bank of N.Y. Mellon Trust Co,,. — So.3d -, -, 40 Fla. L. Weekly D812, D813, 2015 WL 1545225 (Fla. 4th DCA Apr. 8, 2015). The holding in Schindler — that a borrower is entitled to a new notice before the second complaint is filed — applies where the dismissal of the first complaint was an adjudication on the merits. Here, the first complaint was voluntarily dismissed without prejudice, and thus was not an adjudication on the merits. The second complaint here was based on the same July 1, *8532009 default, and, as in mvper, involved the same facts, relief, claimants, causes of action, and allegations.

Chase filed the new complaint less than two months after it voluntarily dismissed the first súit. Sill .had not made any payments between receipt of the 2009 notice of default and the filing of the. second complaint in 2013. The mortgage does not require that a new notice of default be sent, and we find that requiring a second notice of default would serve no practical purpose. As such, Chase’s 2009 thirty-day notice of default remained valid and a second notice of default was not required before filing the second complaint based on the same default. Accordingly, we affirm.

Affirmed.

WARNER and FORST, JJ., concur.


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Citator

Cited By

  • HSBC Bank USA v. Sabatino J. Leone and Diana Leone, 271 So. 3d 172 (Fla. 2d DCA 2019)
    …Bank was not required to send a new default notice prior to filing the second foreclosure action, and the trial court erred in concluding otherwise. The reasoning of the Fourth District's decision in Sill v. JPMorgan Chase Bank, National Ass'n, 182 So. 3d 851 (Fla. 4th DCA 2016), further supports the conclusion that the Bank was not required to mail a new default notice before filing a second foreclosure action based on the same default when the first foreclosure action was dismissed without prejudice…
  • …n involuntary dismissal without prejudice, “there [is] no practical purpose in requiring an additional notice [of default],” and here, “[t]he mortgage does not require that a new notice of default be sent.” Sill v. JPMorgan Chase Bank, Nat’l Ass’n, 182 So. 3d 851, 852-53 (Fla. 4th DCA 2016) (“[As the first complaint was] dismissed without prejudice, . . . [the original] notice of default remained valid and a second notice of default was not required before filing the second complaint based on the same defaul…
  • …s argued by Nationstar, a dismissal without prejudice of a prior foreclosure action does not require the mailing of a new, postdismissal paragraph 22 default notice. Nationstar relied upon the holding in Sill v. JPMorgan Chase Bank, National Ass'n, 182 So. 3d 851 (Fla. 4th DCA 2016). The trial court granted the Glissons' motion, finding that Schindler controlled and that Nationstar was required to have mailed a new paragraph 22 default notice in order to have complied with the terms of the mortgage and to ma…

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