FL Caselaw Update: Mortgage Foreclosures

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In the opinion that follows, the 3rd DCA ruled that it was error for the lower court to enter judgment in favor of a homeowner defending a foreclosure action on the premise that the secured note had been orally modified where that homeowner failed to present sufficient evidence of additional consideration for modification of the note.


REVA DAVIDPUR as Personal Representative of the Estate of Alex Kleiman, Appellant, vs. ESTHER COUNNE, Appellee. 3rd District. Case No. 3D06-2035. L.T. Case No. 04-16988. Opinion filed October 17, 2007. An Appeal from the Circuit Court for Miami-Dade County, Scott J. Silverman, Judge. Counsel: Broad and Cassel and Beverly A. Pohl and Gary E. Lehman, for appellant. Dienstag, Blanco & Cox and Mark Dienstag, for appellee.

(Before WELLS and SUAREZ, JJ., and FLETCHER, Senior Judge.)

(SUAREZ, J.) Reva Davidpur, as Personal Representative of the estate of Alex Kleiman, appeals a final judgment in favor of the defendant, Esther Counne, in a foreclosure action. We reverse. Counne defaulted under the note, but failed to present evidence of additional consideration to support her defense that the note had been orally modified to allow her to postpone payments.

In 2003, Esther Counne executed a note and mortgage to refinance two residential properties owned by Counne on Miami Beach. The mortgage provided that Kleiman, the mortgagee, was not obligated to accept a late payment and could institute foreclosure proceedings after notice and demand. The note provided that all amendments or modifications be in writing and provided a right to foreclose with no right of reinstatement or cure. As of May 2, 2004, Counne was in default on her payments under the note and mortgage. Alex Kleiman died, and Davidpur, as Personal Representative of Kleiman's estate, sued Counne under the acceleration clause of the note for $159,007.00 plus interest, costs and attorney's fees. At the non-jury trial, Counne testified that on June 25, 2004, she had a conversation with Kleiman wherein he stated she could hold off on the monthly payments and pay him when she sold the property. Three weeks after this conversation, Kleiman had his attorney send a demand letter notifying Counne that he was accelerating the payments under the note. She denies receiving the letter until some time in August. The trial court found that, although non-payment as of June 2004, had been established, Counne was excused from payment because an effective oral modification had been entered into which postponed payment until the property was sold.

Davidpur contends on appeal that there was no effective oral modification because there was insufficient evidence of consideration to support the modification. Counne argues that an oral modification of the contract was permissible and that her reliance on the modification was sufficient consideration.

We agree with the appellant ...


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