Ricardo Ortiz, Nuria Almeida and Frank Padron v. PNC Bank, National Association

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

RICARDO ORTIZ, NURIA ALMEIDA and FRANK PADRON,
Appellants,

v.

PNC BANK, NATIONAL ASSOCIATION,
Appellee.

No. 4D15-242

[March 30, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lynn Rosenthal, Judge; L.T. Case No. 062012CA025224.

Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for
appellants.

Ronnie J. Bitman and Kristen M. Rickard of Pearson Bitman LLP,
Maitland, for appellee.

FORST, J.

We sua sponte withdraw our opinion issued March 9, 2016, and
substitute the following opinion in its place.

In this foreclosure case, Appellants Ricardo Ortiz, Nuria Almeida, and
Frank Padron challenge PNC Bank’s (“the Bank”) standing to bring the
foreclosure action and argue that the Bank failed to comply with the
conditions precedent in the mortgage such that the foreclosure was
improper. We address both of these arguments in this opinion, and
ultimately affirm the trial court’s final judgment in favor of the Bank.1

Background

Appellants took out a mortgage and note from a non-party bank, which
indorsed the note to a second non-party bank, which in turn indorsed the
note in blank. When the Bank foreclosed, the copy of the note attached to
the complaint showed these indorsements.

1 We affirm Appellant’s remaining arguments without further comment.
 Before the Bank foreclosed, it sent a default letter to Appellants. That
letter stated, in relevant part, “You . . . have the right to bring a court
action if you claim that the loan is not in default or if you believe that you
have any other defense to the foreclosure.” The mortgage’s language
regarding notification, in Paragraph 22 of the document, required the
Bank to inform Appellants of “the right to assert in the foreclosure
proceeding the non-existence of a default or any other defense . . . to
acceleration and foreclosure.”

At trial, the Bank introduced the original note, mortgage, and default
letter, among other documents irrelevant on appeal. The Bank also
introduced testimony from a witness who was unable to testify whether
the Bank had physical possession of the note at the time the complaint
was filed. Appellants moved for involuntary dismissal, but the motion was
denied. The trial court entered judgment in favor of the Bank, and this
appeal ensued.

Analysis

A. The Bank established standing sufficient to defeat a motion for
involuntary dismissal

“Whether a party is the proper party with standing to bring an action
is a question of law to be reviewed de novo.” Westport Recovery Corp. v.
Midas, 954 So. 2d 750, 752 (Fla. 4th DCA 2007). To foreclose, a plaintiff
must establish that it had standing at the time it filed the complaint.
McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th
DCA 2012). “[W]ith bearer notes, possession of the note is the significant
core element to be analyzed.” Rodriguez v. Wells Fargo Bank, N.A., 178 So.
3d 62, 65 (Fla. 4th DCA 2015) (Conner, J., concurring).

Here, the Bank argues the facts that a copy of the note, with a blank
indorsement, was attached to the complaint, and that the original note
matching the copy was later filed with the court, were sufficient to
establish standing to foreclose. In support, the Bank relies upon Clay
County Land Trust v. JPMorgan Chase Bank, National Ass’n, 152 So. 3d 83
(Fla. 1st DCA 2014), in which the First District held:

When appellee filed the foreclosure complaint, it attached a
copy of the note and an undated allonge to the note containing
an endorsement in blank. This was sufficient to establish as
a matter of law that appellee had standing to bring the
foreclosure action.

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Id. at 85.

We recognize the fact that a copy of a note is attached to a complaint
does not conclusively or necessarily prove that the Bank had actual
possession of the note at the time the complaint was filed. However, if the
Bank later files with the court the original note in the same condition as
the copy attached to the complaint, then we agree that the combination of
such evidence is sufficient to establish that the Bank had actual
possession of the note at the time the complaint was filed and, therefore,
had standing to bring the foreclosure action, absent any testimony or
evidence to the contrary.2

B. The Bank substantially complied with Paragraph 22 of the Mortgage

“[A] trial court’s interpretation of a contract is a matter of law subject
to a de novo standard of review.” Reilly v. Reilly, 94 So. 3d 693, 697 (Fla.
4th DCA 2012).

Paragraph 22 of the mortgage contains various conditions precedent
with which the Bank was required to comply before it could bring a
foreclosure action. The mortgage required the Bank to inform Appellants
of “the right to assert in the foreclosure proceeding the non-existence of a
default or any other defense . . . to acceleration and foreclosure.” The letter
the Bank sent instead told Appellants that “You . . . have the right to bring
a court action if you claim that the loan is not in default or if you believe
that you have any other defense to the foreclosure.”

As an initial matter, we take this opportunity to clarify that substantial
compliance with conditions precedent is all that is required in the
foreclosure context. See Green Tree Servicing, LLC v. Milam, 177 So. 3d 7,
13-14 (Fla. 2d DCA 2015). Substantial compliance is “that 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 [party]
the [benefit].” Casa Linda Tile & Marble Installers, Inc. v. Highlands Place
1981, Ltd., 642 So. 3d 766, 768 (Fla. 4th DCA 1994) (quoting Ocean Ridge
Dev. Corp. v. Quality Plastering, Inc., 247 So. 2d 72, 75 (Fla. 4th DCA
1971)). As such, we join our sister courts in applying a substantial

2 Of course, if the note changes hands during the course of litigation, new
indorsements may be present on the note at trial that were not on the copy
attached to the complaint. We do not address in this opinion what additional
proof is required to demonstrate standing if there is a transfer of holder status
after suit is filed.

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compliance standard. See Bank of N.Y. Mellon v. Nunez, 180 So. 3d 160,
162-63 (Fla. 3d DCA 2015) (noting opinions of the First, Second and Fifth
District Courts of Appeal that have determined that “the lender’s default
notice to borrower must only substantially comply with the conditions
precedent set forth in the mortgage”).

The purpose of the Paragraph 22 notice is “to ensure that borrowers
are informed . . . that they are not required to take a foreclosure complaint
lying down and can defend the case if so inclined.” Milam, 177 So. 3d at
16-17. Instead of clearly notifying Appellants of their right to raise any
defenses within an already-commenced foreclosure proceeding, the Bank
here informed Appellants that they had to go through extra effort to defend
against the foreclosure—they had to bring their own case with the
attendant hassles of filing fees, establishing a proper cause of action, and
the like. The Bank is by far the more sophisticated party in this
relationship. It knew what information it had to provide to Appellants and
simply and inexplicably, in light of the frequency with which such default
notices are sent using boilerplate language, failed to provide it. As such,
the language in the default letter did not strictly conform with the language
in Paragraph 22. However, the question is whether it “substantially”
complied.

While this appeal was pending before us, the Fifth District Court of
Appeal dealt with a case involving a notice letter with similar language. In
Bank of N.Y. Mellon v. Johnson, 41 Fla. L. Weekly D287 (Fla. 5th DCA Jan.
29, 2016), the notice to the homeowner stated “[y]ou may have the right to
bring a court action to assert the non-existence of a default or any other
defense you may have to acceleration and foreclosure.” Id. at D288.
(emphasis omitted). As in the instant case, the condition precedent in
Paragraph 22 of the Johnson mortgage required that the bank inform the
homeowner of “the right to assert in the foreclosure proceeding the non[-
]existence of a default or any other defense . . . to acceleration and
foreclosure.” Id.

At the onset of its analysis of this issue, the Fifth DCA stated that the
default letter sent by the bank “substantially complies with paragraph 22
and caused no prejudice to [the homeowner].” Id. Later, the court
concluded “[i]nsofar as the default letter varies from paragraph 22’s
requirements, any variation caused no actual prejudice to [the
homeowner]. Therefore, we find that the default letter substantially
complies with paragraph 22.” Id.

As such, the Fifth DCA considers not only whether the purportedly
faulty language substantially complied with the mortgage, but also

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whether the language prejudiced the homeowner. Id. (“Absent some
prejudice, the breach of a condition precedent does not constitute a
defense to the enforcement of an otherwise valid contract.” (quoting Gorel
v. Bank of N.Y. Mellon, 165 So. 3d 44, 47 (Fla. 5th DCA 2015))). However,
Johnson appears to conflate “substantial compliance” and “prejudice.”
That is to say, the “insofar” language suggests that the Fifth DCA believes
that if there is no prejudice to the homeowner caused by the faulty
language, then the notice substantially complies with paragraph 22.

The element of prejudice is not part of the inquiry in another recent
opinion issued by one of our other sister courts. In SunTrust Mortgage,
Inc. v. Garcia, 41 Fla. L. Weekly D384 (Fla. 3d DCA Feb. 10, 2016), a case
involving similar language in the notice of default letter, the Third DCA
reversed a trial court order granting summary judgment in the borrower’s
favor on grounds that “the notice provided substantially complies with
paragraph 22 of the mortgage.” Id. at D384.

We adopt the approach of our sister courts and hold that the language
at issue in the default letter substantially complies with paragraph 22 of
the mortgage. We also note that there is no evidence here that Appellant
was prejudiced by the language variation in the default letter. As in
Johnson, the homeowner in this case “retained counsel and vigorously
defended the foreclosure proceedings . . . .” Johnson, 41 Fla. L. Weekly at
D288. Thus, the Bank’s breach letter adequately apprised the Appellants
of their right to assert defenses in the foreclosure proceeding.

Conclusion

The Bank had standing to bring a foreclosure action and substantially
complied with the terms of the mortgage default notification provisions.
We therefore affirm the trial court’s final judgment of foreclosure.

Affirmed.

MAY, J., and SCHER, ROSEMARIE, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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