Florida Appellate Court Rejects Argument That Mortgagee Had to Send Second Default Notice to Borrower After First Lawsuit Dismissed Without Prejudice

A Florida appellate court recently held that a lender could institute a second foreclosure action against a borrower without sending a second default notice, so long as the first action was dismissed without prejudice.  See Sill v. JPMorgan Chase Bank, Nat. Ass’n, 2016 WL 67256 (Fla. Dist. Ct. App. Jan. 6, 2016).  In the case, the borrower defaulted, and the lender sent a default notice pursuant to the terms of the mortgage.  The lender then filed a foreclosure action but eventually dismissed the action voluntarily.  Six weeks later, it filed a second foreclosure action based on the same default as in the original action.  The borrower argued that the lender could not file another foreclosure action until it had sent a second default letter, claiming that the original default notice was no longer valid because the original action was dismissed.  The Court disagreed, however, and drew a distinction between actions dismissed with and without prejudice.  It 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” but that here, a voluntary dismissal without prejudice was not an adjudication on the merits and there would be no “practical purpose” to requiring a second notice.  Therefore, the lender’s final judgment of foreclosure was affirmed. For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com.