BRIAN D. LOPEZ, APPELLANT,
v.
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, COPPERLEAF PROPERTY OWNERS ASSOCIATION, INC., AND UNKNOWN SPOUSE OF BRIAN D. LOPEZ, APPELLEES
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This case addresses whether a notice of default that substantially complies with mortgage paragraph 22 provides sufficient notice to a borrower. The Florida Fourth District Court of Appeal held that substantial compliance with the mortgage's notice requirement is sufficient, reversing the strict requirement for word-for-word compliance.
The court held that a notice of default need only substantially comply with the mortgage's condition precedent, not achieve perfect compliance. The notice in this case substantially complied with paragraph 22 because, in context, it sufficiently conveyed to the borrower that he could defend against foreclosure by showing he was not actually in default.
[1] A notice of default substantially complies with a mortgage provision requiring notice of the right to assert defenses to foreclosure if it conveys the essential informati…
[2] Mortgage terms are construed in accordance with their plain language.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Substantial compliance or performance is "performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee" the benefit of the bargain.”
Establishes the legal standard for substantial compliance with contract conditions precedent, which applies to mortgage requirements.
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Join FLexlaw to unlock all legal intelligenceBrian Lopez received a notice of default from JPMorgan Chase Bank regarding his mortgage. The notice stated that Lopez had "the right to bring a court…
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In this case, we consider whether a notice of default that “substantially complies” with paragraph 22 of a mortgage provides sufficient notice. We find that “substantial compliance” with paragraph 22 satisfies the mortgage’s condition precedent in this case.
Paragraph 22 of the mortgage provides in relevant part:
The notice shall further inform Borrower of the right to ... assert in the foreclosure proceeding the non-existence of a default or any other defense of *345Borrower to acceleration and foreclosure.
The notice of default sent to appellant stated that appellant had “the right to bring a court action to assert the nonexistence of default, or any other defense to acceleration, foreclosure, and sale.” In the lower court, appellant moved for involuntary dismissal, arguing the notice of default failed to inform him that he could assert the non-existence of default as a defense to a foreclosure action. ' Rather, the notice of default informed him he had the “right to bring a court action to assert nonexistence of default.” (emphasis added). The lower court denied the motion and appellant appealed.
The terms of a mortgage, like the terms of a contract, “are construed in accordance with their plain language.” U.S. Bank Nat’l Ass’n. v. Busquets, 135 So.3d 488, 489 (Fla. 2d DCA 2014) (citation omitted). In contract law, when the terms of a contract state a condition precedent to suit, a party must substantially perform'with the condition precedent before being able to recover. See Ashby v. Ashby, 651 So.2d 246, 247 (Fla. 4th DCA 1995) (citing Seaside Cmty. Dev. Corp. v. Edwards, 573 So.2d 142, 145 (Fla. 1st DCA 1991)). Substantial compliance or performance is “performance of a- contract which, while not full performance, is. so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee” the benefit of the bargain. See Ocean Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971). Because “ordinary contract principles” apply to the interpretation of a mortgage and because contract law requires only “substantial compliance” with a condition precedent, a notice of default need only substantially comply with a mortgage’s condition precedent. See Bank of N.Y. Mellon v. Nunez, 180 So.3d 160, 162-63 (Fla. 3d DCA 2015); Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 13-14 (Fla. 2d DCA 2015); Bank of N.Y. Mellon v. Johnson, 185 So.3d 594 (Fla. 5th DCA 2016).
In the present case, paragraph 22 of the mortgage required the Bank to inform appellant that he had the right to assert the non-existence of default as a defense to foreclosure. The notice of default sent to appellant stated he had “the right to bring a court action to assert the nonexistence of default, or any other defense to acceleration, foreclosure, and sale.” In context, the use of the phrase “any other defense” directly following “nonexistence of default” makes it clear that the nonexistence of default was a defense to' foreclosure. Consequently, the letter put appellant on sufficient notice that nonexistence of default was a possible defense to foreclosure.
Furthermore, cases such as Samaroo v. Wells Fargo Bank, 137 So.3d 1127 (Fla. 5th DCA 2014), are distinguishable. In Samaroo, the notice of default “in no way” suggested that the defendant would have had a right to reinstate after acceleration. Id. at 1129. In this case, in contrast, while the notice of default did not track paragraph 22 word for word, it sufficiently conveyed the fact that appellant could successfully defend against the impending foreclosure if he could show that he was not actually in default.
In summary, because we find the notice of default in this case substantially complied with paragraph 22 of the mortgage, we affirm. We further find the other arguments appellant raises to be without merit and affirm without further comment.
Affirmed.
GROSS, and CONNER, JJ., concur. ■
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Citigroup Mortg. Loan Tr. v. Scialabba, 238 So. 3d 317 (Fla. 4th DCA 2018)…ance or performance is ‘performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee’ the benefit of the bargain.” Lopez v. JPMorgan Chase Bank, 187 So. 3d 343, 345 (Fla. 4th DCA 2016) (quoting Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So. 2d 72, 75 (Fla. 4th DCA 1971)). “Moreover, a breach of a condition precedent does not preclude the enforcement of an otherwise valid contract, absent…
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Fed. Nat'l Mortg. Ass'n v. Morton, 196 So. 3d 428 (Fla. 2d DCA 2016)…ter varies from paragraph twenty-two in a way that goes to the essence of the parties’ bargain” that an alleged defect in a notice letter should forestall a subsequent foreclosure action. Id. at 15; see also Lopez v. JPMorgan Chase Bank Nat’l Ass’n, 187 So. 3d 343 (Fla. 4th DCA 2016) (adopting substantial compliance standard and holding that language regarding the rights of the borrower to assert defenses in a court action substantially complied with paragraph twenty-two’s requirement that a borrower be notif…
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Bank OF NEW York Mellon v. Withum, 204 So. 3d 136 (Fla. 4th DCA 2016)…borrower must do to bring the loan out of default.” Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 18 (Fla. 2d DCA 2016). “[A] notice of default need only substantially comply with a mortgage’s condition precedent.” Lopez v. JPMorgan Chase Bank, 187 So. 3d 343, 345 (Fla. 4th DCA 2016). As to the trial court’s stated assumption that Bank was required to send a new acceleration notice every time it accepted a partial payment even if the principal amount due was never made current, this court has held that,…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015)
- Bryant v. Brinkley, 247 So. 2d 72 (Fla. 1st DCA 1971)
- Bank OF NEW York Mellon v. Nunez, 180 So. 3d 160 (Fla. 3d DCA 2015)
- The Bank OF NEW York Mellon v. Johnson, 185 So. 3d 594 (Fla. 5th DCA 2016)
- Seaside Cmty. Dev. Corp. v. William Walter Edwards and wife, 573 So. 2d 142 (Fla. 1st DCA 1991)
- Samaroo v. Wells Fargo Bank, 137 So. 3d 1127 (Fla. 5th DCA 2014)
- Ashby v. Sharron S. Ashby, 651 So. 2d 246 (Fla. 4th DCA 1995)
- U.S. Bank Nat'l Ass'n for the Gsamp Tr. 2006-NCI Mortg. Pass-Through Certificates v. Busquets, 135 So. 3d 488 (Fla. 2d DCA 2014)