       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                MICHAEL E. SILL A/K/A MICHAEL SILL,
                             Appellant,

                                     v.

        JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
                         Appellee.

                              No. 4D14-1014

                            [January 6, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Kathleen D. Ireland, Judge; L.T. Case No. 13-10157 CA.

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

  Elizabeth T. Frau of Ronald R. Wolfe & Associates, P.L., Tampa, for
appellee.

STEVENSON, J.

    Michael Sill appeals a final judgment of foreclosure entered in favor of
JPMorgan Chase Bank (“Chase”). He raises three issues: (1) Chase lacked
standing; (2) Chase failed to prove if, when, and how the notice of default
was sent; and (3) Chase was required to send a new notice of default after
it voluntarily dismissed the first suit and before it filed the second suit.
We affirm on all issues, but write to address the third—whether a new
notice of default was required.

   On April 2, 2007, Sill executed a promissory note and mortgage on his
property. He defaulted on the loan July 1, 2009. Chase sent Sill a notice
of default dated August 28, 2009, advising him he had thirty days to cure
the default or the loan would be accelerated. This notice of default was
required under paragraph 22 of the mortgage, which reads:

      Lender shall give notice to Borrower prior to acceleration
      following Borrower’s breach of any covenant or agreement in
      this Security Instrument . . . . The notice shall specify: (a)
      the default; (b) the action required to cure the default; (c) a
      date, not less than 30 days from the date the notice is given
      to Borrower, by which the default must be cured; and (d) that
      failure to cure the default on or before the date specified in the
      notice may result in acceleration of the sums secured by this
      Security Instrument, foreclosure by judicial proceeding and
      sale of the Property.

(emphasis added).

   Sill did not cure the default, and Chase filed a foreclosure complaint
against him in October of 2009. Chase voluntarily dismissed the
foreclosure action on March 7, 2013, but six weeks later filed a second
foreclosure complaint against Sill based on the same July 1, 2009 default.

   Sill argues that paragraph 22 of the mortgage required Chase to mail a
second notice of default before filing the second foreclosure action. We
disagree.

    The Fifth District addressed an analogous pre-suit notice issue in Kuper
v. Perry, 718 So. 2d 859 (Fla. 5th DCA 1998). There, Kuper sustained an
injury while exiting a sheriff’s van at the county jail. Under section
768.28(6)(a), Florida Statutes, he was required to present his claim in
writing before filing suit. Kuper, 718 So. 2d at 860. In 1993, Kuper filed
his pre-suit notice as required by the statute. He filed suit against the
Sheriff and County Board of Commissioners in 1994. In 1996, he
voluntarily dismissed his complaint without prejudice, but six days later
refiled the lawsuit with a “virtually identical complaint.” Id. The Sheriff
moved to dismiss the second suit, arguing that Kuper did not comply with
the pre-suit notice requirement. The trial court granted the dismissal. The
appellate court reversed, holding that, because “the 1994 and 1996
complaints do not involve different facts, different relief, a different
claimant, a different cause of action, or new allegations,” there was no
practical purpose in requiring an additional notice. Id. at 861.

   We recognize we recently held that, where a complaint was dismissed
with prejudice and was thus an adjudication on the merits, the bank was
required to provide a new notice of default to support its second complaint.
Schindler v. Bank of N.Y. Mellon Trust Co., 40 Fla. L. Weekly D812, D813
(Fla. 4th DCA Apr. 8, 2015). The holding in Schindler—that a borrower is
entitled to a new notice before the second complaint is filed—applies where
the dismissal of the first complaint was an adjudication on the merits.
Here, the first complaint was voluntarily dismissed without prejudice, and
thus was not an adjudication on the merits. The second complaint here


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was based on the same July 1, 2009 default, and, as in Kuper, involved
the same facts, relief, claimants, causes of action, and allegations.

    Chase filed the new complaint less than two months after it voluntarily
dismissed the first suit. Sill had not made any payments between receipt
of the 2009 notice of default and the filing of the second complaint in 2013.
The mortgage does not require that a new notice of default be sent, and we
find that requiring a second notice of default would serve no practical
purpose. As such, Chase’s 2009 thirty-day notice of default remained
valid and a second notice of default was not required before filing the
second complaint based on the same default. Accordingly, we affirm.

   Affirmed.

WARNER and FORST, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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