The Fourth District District Court of Appeal (4th DCA) recently held that a foreclosing lender was not required to send a new notice of default after dismissing its first foreclosure lawsuit but before filing a new foreclosure action. Typically, a notice of default is required before a foreclosure action is filed; a condition precedent.
The defendants/borrowers were sent a notice of default before the filing of a first foreclosure action pursuant to Paragraph 22 of the mortgage; which stated that the borrower had 30 days to cure the default otherwise the loan would be accelerated. The borrower failed to cure the default and a foreclosure action was filed.
After the filing of the first foreclosure action, the lender voluntarily dismissed its case, but immediately refiled weeks later based upon the same default and without a new notice of default. The lower court entered final judgment which the borrowers appealed.
The 4th DCA found that a second notice of default was not required because the complaints involved the “same facts, parties and causes of action.” Therefore a new notice served no purpose as it was based upon the same original default.
Furthermore, the instant first case was dismissed without prejudice which did not act as an adjudication on the merits of the case, and the borrower made no payments on the loan before the filing of the new foreclosure action.
Thus, the 4th DCA held that the notice of default “remained valid and a second notice of default was not required before filing the second complaint based on the same default.”