Tim Hortons Franchisee Row Moves South of the Border
Author: Marina Strauss
Publication: The Globe and Mail
Posted on Blog August 6, 2015
Contracts such as purchase contracts, mortgages and franchise agreements include a notice provision that require a non-breaching party to provide notice of default that adequate describes the breach and provide the breaching party with an adequate opportunity to cure the breach. While compliance with this presuit notice requirements may seem like an easy straightforward process, recent wave of litigation on this issue have proven the contrary. It is important to note that the standard for compliance with conditions precedent is substantial compliance under Florida law. Seaside Community Dev. Corp. v. Edwards, 573 So. 2d 142 (Fla. 1st DCA 1991). This means that compliance with a question of degree that should be determined on a case by case basis. Recent decisions from the Fourth and Fifth District Court of Appeals have brought more uncertainty than clarity on this issue.
In Blum v. Deutsche Bank Trust Company, the Fourth District Court of Appeal reversed a final judgment of foreclosure in favor of Deutsche Bank and remanded the case to the trial court with instructions to dismiss the lawsuit as a result of Deutsche Bank Trust’s failure to prove that it delivered the presuit default letter required by the mortgage. 159 So. 3d 920 (Fla. 4th DCA 2015). Deutsche Bank had delivered a notice of default to the Blums at a different address than the one provided for in the mortgage. The Fourth District held that Deutsche Bank’s failure to strictly comply with the presuit notice warranted dismissal of the foreclosure lawsuit. Conversely, the Fifth District Court of Appeals in Vasilevskiy v. Wachovia Bank Nat’l Ass’n, affirmed the trial court’s entry of summary judgment of foreclosure in favor of Wachovia Bank despite Wachovia Bank’s failure to comply with the presuit notice requirement in the mortgage. 2015 WL 2414502 (Fla. 5th DCA May 25, 2015). The record clearly established that Wachovia failed to provide Vasilevskiy with a notice of default that gave him the 30-day cure period provided for in the mortgage. Id. Nevertheless, the Fifth District found that Wachovia is still entitled to summary judgment of foreclosure because Vasilevskiy failed to prove that he was prejudiced by the defective notice of default.
The uncertainty created by the Blum and Vasilevskiy decisions will spawn more litigation on the issue of compliance with the presuit notice requirement.