This client retained Loan Lawyers in 2013 to defend against a mortgage foreclosure action in Miami-Dade County. Although the trial court entered a final judgment of foreclosure in favor of plaintiff Bank of America, we appealed the foreclosure judgment and won on appeal, a rarity in Florida’s Third District Court of Appeal.
Long before the client came to Loan Lawyers or was even in foreclosure, the client had accepted a loan modification from the lender and paid monthly payments on this loan modification for 18 months. Not once did the client receive any indication from the lender that there was any problem with their payments or the loan modification. Their payments under the loan modification totaled nearly $30,000.
Eighteen months after the client accepted the loan modification and had been making payments on the loan modification, Bank of America then sent the client a default letter alleging that the payment for over one year prior was still due and, further, instructing the client to pay over $40,000 within 30 days to cure the alleged default. The letter did not acknowledge the loan modification agreement.
When Bank of America filed its complaint about foreclosure, it did not reference the loan modification agreement or otherwise allege that the loan had been modified.
The primary issue at trial was whether the parties had entered into a loan modification agreement. The trial court found that no loan modification agreement existed, but it did credit borrowers the nearly $30,000 they had paid over 18 months under what they believed to be a loan modification agreement.
The trial court entered its final judgment of foreclosure. With Loan Lawyers, the client appealed this judgment to the Third District Court of Appeal, which serves Miami-Dade County and Monroe County.
In August 2018, the Third District Court of Appeal issued its opinion, Pijuan v. Bank of America, reversing the final judgment of foreclosure and remanding the case to the trial court for the entry of an order of involuntary dismissal because Bank of America failed to plead and prove the client’s breach of the loan modification agreement.
This is a big win for borrowers all over Florida, as the Third District Court of Appeal adopted the reasoning of the Fifth District Court of Appeal in its 2015 decision, Kuehlman v. Bank of America, and that of the Second District Court of Appeal in its 2016 decision, Nowlin v. Nationstar Mortg., LLC. The Third District Court of Appeal stated as follows: “We follow the persuasive precedent of our sister courts in holding that, when a loan modification has been reached, a lender can foreclose only by both pleading and proving a breach of the modification agreement.”
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems, we have saved over 1,800 homes from foreclosure, eliminated $100,000,000 in mortgage principal and consumer debt, and have collected millions of dollars on behalf of our clients due to bank, loan servicer, and debt collector violations, negligence and fraud.
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