        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            BRIAN D. LOPEZ,
                               Appellant,

                                     v.

 JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, COPPERLEAF
  PROPERTY OWNERS ASSOCIATION, INC., and UNKNOWN SPOUSE
                   OF BRIAN D. LOPEZ,
                        Appellees.

                              No. 4D14-4504

                             [March 9, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; George Shahood, Senior Judge; L.T. Case No. 2013-CA-
000643

   Shirlarian N. Williams, Peter Ticktin, and Kendrick Almaguer of The
Ticktin Law Group, P.A., Deerfield Beach, for appellant.

    W. Aaron Daniel and Elliot B. Kula of Kula & Associates, P.A., Miami,
for appellee JPMorgan Chase Bank, N.A.

LEVINE, J.

   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 Borrower 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, 41 Fla. L. Weekly D287 (Fla. 5th DCA Jan. 29, 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

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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.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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