187 So. 3d 343
Fla. Dist. Ct. App.2016Background
- Appellant Brian D. Lopez received a notice of default from JPMorgan Chase in connection with a mortgage that contained paragraph 22 requiring the lender to inform the borrower of the right to "assert in the foreclosure proceeding the non-existence of a default or any other defense . . . to acceleration and foreclosure."
- The notice stated Lopez had "the right to bring a court action to assert the nonexistence of default, or any other defense to acceleration, foreclosure, and sale."
- Lopez moved for involuntary dismissal in the trial court, arguing the notice failed to inform him that he could assert non-existence of default "as a defense to a foreclosure action," because it said only he could "bring a court action to assert nonexistence of default."
- The trial court denied the motion; Lopez appealed to the Fourth District Court of Appeal.
- The appellate court evaluated whether the notice of default needed to track paragraph 22 verbatim or whether "substantial compliance" with the mortgage’s condition precedent was sufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a notice of default must exactly track paragraph 22’s language to satisfy the mortgage condition precedent | Lopez: the notice failed to inform him he could assert nonexistence of default as a defense to foreclosure because it said only he could "bring a court action to assert nonexistence of default" | Bank: the notice, though not word-for-word, conveyed that nonexistence of default is a defense to acceleration and foreclosure | The court held substantial compliance sufficed; the notice put Lopez on sufficient notice that nonexistence of default was a possible defense to foreclosure |
Key Cases Cited
- U.S. Bank Nat’l Ass’n. v. Busquets, 135 So. 3d 488 (Fla. 2d DCA 2014) (mortgage terms are construed by plain language and treated like contracts)
- Ashby v. Ashby, 651 So. 2d 246 (Fla. 4th DCA 1995) (condition precedent requires substantial performance to seek relief)
- Seaside Cmty. Dev. Corp. v. Edwards, 573 So. 2d 142 (Fla. 1st DCA 1991) (substantial compliance doctrine for conditions precedent)
- Ocean Dev. Corp. v. Quality Plastering, Inc., 247 So. 2d 72 (Fla. 4th DCA 1971) (definition and application of substantial performance)
- Bank of N.Y. Mellon v. Nunez, 180 So. 3d 160 (Fla. 3d DCA 2015) (applying substantial compliance to mortgage notice requirements)
- Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015) (same)
- Samaroo v. Wells Fargo Bank, 137 So. 3d 1127 (Fla. 5th DCA 2014) (distinguishable: notice there did not suggest right to reinstate after acceleration)
Affirmed.