5th DCA Florida Improper Notice Not Defense to Foreclosure
ADIEL GOREL AND FLCA TROPICAL HOLDINGS, LLC, v THE BANK OF NEW YORK MELLON
Failure to provide at least 30 days to cure the default in notice of default and right to cure did not prejudice the borrower, was not a valid defense to the foreclosure.
The Court ruled: Bank’s default letter set a cure date twenty-nine days later, not thirty or more as required. We agree with Bank that the defective notice did not prejudice Mr. Gorel, as he made no attempt to cure the default. Absent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an otherwise valid contract. Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1248-49 (Fla. 5th DCA 2012) (holding breach of condition precedent must be material, meaning one causing prejudice, to constitute defense to enforcement of contract).
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