Mark Stopa is a very skillful foreclosure defense attorney in Florida. He has had a lot of success with arguing Fla. Stat. 559.715 as an affirmative defense in foreclosure cases. Fla. Stat. 559.715 requires lenders to give at least a 30 day notice of the assignment of the debt. His courtroom successes arguing Fla. Stat. 559.715 has garnered the attention of one of Florida’s biggest law firms, Carlton Fields, who has decided to write a blog post titled “An Unlikely Condition Precedent to Foreclosure in Florida“. Mr. Stopa has an excellent response to the Carlton Fields blog post titled “Carlton Fields Weighs in on Fla. Stat. 559.715“. My bet is on Mr. Stopa winning this argument.
What stood out for me in the Carlton Fields blog post is that they give this very curious piece of advice for a law firm: “the best offense to a Section 559.715 defense is not to demand payment of the underlying debt in the mortgage foreclosure complaint.” Correct me if I am wrong, but I always thought that in order to bring a foreclosure action, there has to be a default under the terms of the mortgage. One such default is a failure to make the mortgage payments. So how then is the foreclosing entity suppose to foreclose on the mortgage if they do not demand payment of the underlying debt?
Basically, what Carlton Fields is advocating is a foreclosure lien versus a judgment lien. However, even foreclosure liens are based on a default. After all, the foreclosing entity has to plead that there was a default under the mortgage in order for the court to allow the foreclosing entity to seize the property and sell the property to satisfy the default.
Remember there is also Paragraph 22 which requires that a lender give a 30 day notice of the default before a foreclosure action can be initiated. Additionally, the lender must give the borrower an opportunity to cure the default. Here is Mr. Stopa’s explanation of the Paragraph 22 affirmative defense.
Either way (Paragraph 22 or Fla. Stat. 559.715), the lender has to give a 30 day notice of default.