IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH
DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
BAYVIEW LOAN SERVICING, LLC,
Appellant,
v. Case No. 5D14-3296
JESSICA LYNN CLAYTON HEEFNER,
ETC., ET AL.,
Appellees.
________________________________/
Opinion filed July 29, 2016
Appeal from the Circuit Court
for Orange County,
Emerson R. Thompson, Jr., Senior Judge.
Steven C. Rubino and Matthew A. Ciccio,
of Aldridge Connors, LLP, Delray Beach,
for Appellant.
Peter Ticktin, Kendrick Almaguer and
Michael S. Wickenhauser, of The
Ticktin Law Group, P.A., Deerfield Beach,
for Appellees, Jessica Lynn Clayton
Heefner a/k/a Jessica Lynn C. Heefner
and Zachery James Heefner.
No Appearance for other Appellees.
BERGER, J.
Bayview Loan Servicing, LLC (“Bank”) appeals the trial court's order involuntarily
dismissing its foreclosure complaint against Jessica Lynn Clayton Heefner and Zachary
James Heefner ("Borrowers") for failure to prove compliance with conditions precedent
to foreclosure. Based on Borrowers' concession of error regarding the exclusion of the
acceleration letter and payment history on hearsay grounds, and because the
acceleration letter substantially complied with paragraph 22 of the mortgage, we
reverse.
As Borrowers properly concede, the acceleration letter and payment history
should have been admitted under the business records exception to the hearsay rule as
explained in Le v. U.S. Bank, 165 So. 3d 776, 778 (Fla. 5th DCA 2015) and Nationstar
Mortgage, LLC v. Berdecia, 169 So. 3d 209, 213-16 (Fla. 5th DCA 2015). Nevertheless,
they invoke the tipsy coachman doctrine1 to argue that the trial court's order involuntarily
dismissing the case should be affirmed on the basis that the acceleration letter did not
comply with paragraph 22 of the mortgage because it did not inform Borrowers of their
right to raise defenses to foreclosure in Bank's foreclosure case. Specifically, Borrowers
argue that the acceleration letter constituted a material breach of the condition
precedent in paragraph 22 of the mortgage because it informed Borrowers they would
have to bring an independent proceeding to assert their defenses rather than asserting
them in the foreclosure proceeding.
Bank contends that the acceleration letter substantially complied with paragraph
22 of the mortgage and that Borrowers were not prejudiced by the language in the letter
because they actively litigated the case and filed affirmative defenses. We agree.
While the notice required by paragraph 22 of the mortgage prior to acceleration
constitutes a condition precedent to foreclosure, "[a]bsent some prejudice, the breach of
1
See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla.
1999).
2
a condition precedent does not constitute a defense to the enforcement of an otherwise
valid contract." Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 47 (Fla. 5th DCA 2015)
(citing Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1248-49 (Fla. 5th DCA
2012)). The standard is whether the party seeking foreclosure has substantially
complied with the conditions precedent. See Lopez v. JPMorgan Chase Bank, 187 So.
3d 343,
345 (Fla. 4th DCA 2016); Bank of N.Y. Mellon v. Nunez, 180 So. 3d 160, 162 (Fla. 3d
DCA 2015); Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 13 (Fla. 2d DCA 2015).
Indeed, "when the content of a lender's notice letter is nearly equivalent to or varies in
only immaterial respects from what the mortgage requires, the letter substantially
complies, and a minor variation from the terms of paragraph twenty-two should not
preclude a foreclosure action." Milam, 177 So. 3d at 14-15. Paragraph 22 of the
mortgage "is not a technical trap designed to forestall a lender from prosecuting an
otherwise proper foreclosure action because a borrower, after the fact, decides that the
letter might have been better worded." Id. at 19.
Language in the acceleration letter informing a borrower of the right to assert defenses
and challenge the existence of the default by filing a separate action is not prejudicial
when the borrower actually appears and asserts defenses in the foreclosure case. See
Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923, 926-27 (Fla. 4th DCA 2016) (citing
Bank of N.Y. Mellon v. Johnson, 185 So. 3d 594, 597 (Fla. 5th DCA 2016)); Milam, 177
So. 3d at 19. As Bank correctly notes, here, Borrowers retained counsel, appeared in
the foreclosure case, filed an answer to the foreclosure complaint with affirmative
defenses, and asserted their defenses at trial. Even if we were to find the language to
be a material breach, which we decline to do, Borrowers cannot establish prejudice.
3
Accordingly, we reverse the order of the trial court involuntarily dismissing Bank’s
foreclosure complaint and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
TORPY and LAMBERT, JJ., concur.
4