The Bank of New York Mellon v. Fernandez
After a bench trial, the trial court denied foreclosure, finding the Bank failed to prove default because four 2015 payments had been unexplainedly reversed and the servicer later refused payments. The Second District reversed, holding that even if the reversals were improper, the borrowers' failure to pay from June 2017 forward constituted separate, proven defaults, and that neither tender of payment nor unclean hands excused the ongoing nonpayment. On remand the court must deduct the four reversed payments, pre-June 2017 interest, and pre-July 2017 fees, and may reduce attorney's fees spent litigating the reversed payments. Judge Silberman dissented, arguing competent substantial evidence supported the trial court's findings.
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Key facts
- The Bank of New York Mellon sought foreclosure against borrowers Fernandez after the trial court found the bank failed to prove default because four 2015 payments were unexplainedly reversed and the servicer refused subsequent payments.
- The trial court denied foreclosure, but the Second District reversed, finding that even if the payment reversals were improper, the borrowers' failure to pay from June 2017 forward constituted separate, proven defaults.
- +2 more key facts with a free trial
Why it matters
This is a useful roadmap for both sides of a contested foreclosure where the servicer's accounting is flawed. Lenders can cite it for the proposition that an unexplained payment reversal does not defeat foreclosure when… — full analysis with a trial
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