Strict construction is the rule that should be applied to

the notice obligation imposed on the lender under the terms

of residential mortgage contracts which all have powerful

adhesive terms that favor the lender. There is no

justification for the court to grant a foreclosure where the

lender has failed to access that right in conformity with the

contract from which the lender derives the power.

The court should not legitimize an aberrant use by the

lender of its power to foreclose by allowing a notice that

does not strictly comply with the mortgage to be evidence

of compliance with the condition precedent to the right to

foreclose a residential mortgage.

By allowing the lender to undermine the notice, the

power of the court would be corrupted to favor one party to

a contract over another to achieve an illegitimate result. A

notice of intent to accelerate that strictly complies with the

mortgage is necessary to the granting of a foreclosure. The

purpose of the strict notice terms found in the mortgage is

to provide the homeowner with an opportunity to cure the

default prior to being required to face the harsh

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consequences of acceleration or foreclosure. A foreclosure

action that accelerates the debt based on a noncompliant

notice should be dismissed for want of performance of a

condition precedent or the basis for an estoppel of the

lender’s right to accelerate the debt. The lender’s power to

foreclose is limited and defined by the mortgage and the

lender has only such authority as is thus expressly conferred

upon him in that contract.

The law favors the construction of adhesive consumer

contracts against the drafter and the law should not be

applied differently in a foreclosure proceeding. The terms of

the mortgage contract, particularly the notice provisions,

should be construed against the lender who drafted the

contract and in favor of the residential borrowers. Security

First Federal Sav. & Loan Ass'n v. Jarchin, 479 So.2d 767,

770 (Fla. 5th DCA 1985) (“A party is bound by the language

it adopts in an agreement, no matter how disadvantageous

that language later proves to be."), citing Consolidated

Development & Engineering Corp. v. Ortega Co., 117 Fla.

438, 158 So. 94 (1934) and Carnell v. Carnell, 398 So.2d 503

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(Fla. 5th DCA), review denied, 407 So.2d 1102 (Fla. 1981);

see also, Rose v. Lurton Co., 111 Fla. 424, 149 So. 557

(1933)

The law abhors a foreclosure and where the mortgage

gives the lender extraordinary power to take away a

person’s homestead, the borrower must be given the notice

that the mortgage requires before the lender should have

the right to accelerate the debt or foreclose the mortgage.

Strict compliance with paragraph 22 is especially important

given the origins of the paragraph's provisions which

derives from the standard form mortgage provided by the

Federal National Mortgage Association (Fannie Mae) and

Federal Home Loan Mortgage Corporation (Freddie Mac)

which together are the largest source of financing for home

mortgages in this country. Both of these government

sponsored enterprises impose their form mortgage on

lenders, the use of the form with the standard paragraph 22

is nationwide. See Forrester, Fannie Mae/Freddie Mac

Uniform Mortgage Instruments: The Forgotten Benefit to

Homeowners, 72 Mo. L. Rev. 1077, 1078, 1082, 1090

3
(2007); Jensen, Mortgage Standardization: History of

Interaction of Economics, Consumerism and Governmental

Pressure, 7 Real Prop. Prob. & Tr. J. 397, 403, 409, 410, 414

(1972). Paragraph 22 was added to the standard form

mortgage intentionally to give homeowners increased

protection from acceleration and foreclosure. Id. Strict

compliance with paragraph 22 is necessary to maintain the

consumer protection purpose of the paragraph's provisions

and strict compliance with the notice terms in the mortgage

is not unfair, burdensome or prejudicial to the lender. There

is no good reason to not require the mortgagee of a

residential mortgage to strictly conform to the provisions of

paragraph 22 in its own mortgage.

Paragraph 22 demands strict compliance, regardless of

the existence, or not, of prejudice to a particular mortgagor,

but the lack of an actual unfairness should be presumed to

result where a residential mortgagor fails to receive the

proper notice of default and intent to accelerate. There is

not any real debate that foreclosure of one’s home is a

powerful act with overwhelming and adverse consequences

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to the homeowner. The notice is specifically designed to

draw the attention of the homeowner to rights that, as a

borrower, he or she must be apprised of including the

specific right to freely assert in the foreclosure proceedings

the non-existence of a default or any other defenses that

the borrower may have. The notice must state the exact

default, inform the borrower of the right to reinstate the

loan after acceleration and timely inform the borrower that

failure to cure the default could result in foreclosure by

judicial proceeding and sale of the property. The notice also

has to give the borrower a full 30 days as specified in the

mortgage to cure the default.

An untimely and misinformative notice does not meet the

burden of proof imposed on the Plaintiff in a foreclosure

action. Griffin v. American General Life And Accident Ins.

Co., 752 So. 2d 621, 623 (Fla. 2d DCA 1999) The notice

provisions in paragraph 22 of the mortgage are clear and

unambiguous. The word “shall” as used in that paragraph

doesn’t leave room for minimizing the rights that the lender

must give to the homeowner before lawfully accelerating

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the mortgage debt. The notice is a mandatory and

absolute condition precedent to foreclosure. Konsulian v.

Busey Bank, NA, 61 So.3d 1283, 1284 (Fla. 2d DCA 2011);

Frost v. Regions Bank, 15 So. 3d 905, 906-07 (Fla. 4th DCA

2009)

Additionally, the Florida Constitution establishes

enhanced protections for homestead rights. A notice that

strictly comports with the terms of the mortgage is an

essential component of due process to which every

homeowner is entitled to before losing their home to

foreclosure. "Every provision in a contract should be given

meaning and effect." Excelsior Ins. Co. v. Pomona Park Bar

& Package Store, 369 So.2d 938, 941 (Fla. 1979) The

consumer protections afforded residential mortgage

borrowers should not be nullified and noncompliant notices

are not entitled to judicial absolution.