              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


DEUTSCHE BANK NATIONAL TRUST                 )
COMPANY, AS INDENTURE TRUSTEE,               )
FOR NEW CENTURY HOME EQUITY                  )
LOAN TRUST 2005-2,                           )
                                             )
             Appellant,                      )
                                             )
v.                                           )      Case No. 2D14-1560
                                             )
DORIS QUINION, WANDA CRESON,                 )
JIM CRESON, and NEW CENTURY                  )
MORTGAGE,                                    )
                                             )
             Appellees.                      )
                                             )

Opinion filed January 15, 2016.

Appeal from the Circuit Court for
Hillsborough County; Christine K. Vogel,
Judge.

Morgan L. Weinstein of Van Ness Law
Firm, PLC, Deerfield Beach, for Appellant.

Mark P. Stopa of Stopa Law Firm, Tampa,
for Appellees Wanda Creson and Jim
Creson.

No appearance for remaining Appellees.



LUCAS, Judge.
              In this mortgage foreclosure action, Deutsche Bank National Trust

Company appeals an order of dismissal entered in favor of the borrowers, Wanda and

Jim Creson.1 Deutsche Bank argues several issues on appeal. Because we find merit

in its first argument that the Cresons' answer did not sufficiently allege a failure of a

condition precedent, we reverse the circuit court's order without addressing the

remaining issues that were raised in this appeal.

              In 2011 Deutsche Bank filed a lawsuit against the Cresons to foreclose on

a residential mortgage on their property in Tampa. In its complaint, Deutsche Bank

alleged that it had standing to bring the action as an assignee of the Cresons' original

note and mortgage with New Century Mortgage Corporation and that the Cresons had

defaulted on the note by failing to make any payments since November of 2010.

Paragraph 2 of the complaint included an allegation that "[a]ll conditions precedent to

the filing of this matter have been completed and/or waived."

              The Cresons generally denied Deutsche Bank's allegations in their

answer. With respect to Deutsche Bank's allegation concerning conditions precedent,

the Cresons' answer stated the following:

              Defendants deny the allegations in paragraph 2 of the
              Complaint. Specifically, and without limitation, Plaintiff failed
              to give notice of the alleged default and an opportunity to
              cure, as required. Further, Plaintiff failed to comply with the
              requirements of the National Housing Act, 12 U.S.C. §
              1701x(c)(5), under which Plaintiff is required to complete
              pre-foreclosure counseling with Defendants[,] and Plaintiff



              1
             Appellee, Ms. Doris Quinion also executed the subject note and
mortgage. However, the trial court entered a default judgment against Ms. Quinion in
July 2011. She did not participate in the proceedings below and has not made an
appearance in this appeal.


                                             -2-
              failed to comply with the requirements of . . . § 559.715[,]
              Fla. Stat.

              The litigation proceeded to a hearing on the Cresons' motion for summary

judgment. The circuit court was persuaded that Deutsche Bank had failed to comply

with a condition precedent the court construed from section 559.715, Florida Statutes

(2014). On February 25, 2014, the circuit court entered its order of dismissal, which

stated simply that "Plaintiff did not comply with Fla. Stat. 559.715." The court dismissed

Deutsche Bank's complaint but without prejudice for it to file a new lawsuit. Because

the order of dismissal both disposed of Deutsche Bank's complaint and required it to

initiate a separate lawsuit, we have jurisdiction to consider this appeal. See Hinote v.

Ford Motor Co., 958 So. 2d 1009, 1010 (Fla. 1st DCA 2007) ("The order of dismissal is

clearly final when, for instance, the claim could only be pursued by filing a new

complaint . . . ." (citing Delgado v. J. Byrons, Inc., 877 So. 2d 822 (Fla. 4th DCA 2004))).

We review a court's dismissal of a complaint de novo. Williams v. Gaffin Indus. Servs.,

Inc., 88 So. 3d 1027, 1029 (Fla. 2d DCA 2012); Mortg. Elec. Registration Sys., Inc. v.

Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007).

              Section 559.715, Florida Statutes (2010), titled "Assignment of consumer

debts," is part of the Florida Consumer Collection Practices Act, and it reads as follows:

              This part does not prohibit the assignment, by a creditor, of
              the right to bill and collect a consumer debt. However, the
              assignee must give the debtor written notice of such
              assignment as soon as practical after the assignment is
              made, but at least 30 days before any action to collect the
              debt. The assignee is a real party in interest and may bring
              an action to collect a debt that has been assigned to the
              assignee and is in default.




                                            -3-
              The parties have staked divergent positions about this statute, its

applicability to residential mortgage loans, and whether it creates a condition precedent

for actions to foreclose on a security interest, such as a mortgage. In this opinion, we

address only the more preliminary concern of how such issues should be raised in civil

pleading practice.

              Florida Rule of Civil Procedure 1.120(c) imposes a heightened pleading

requirement upon a litigant who wishes to challenge the fulfillment of a condition

precedent; under the rule, "[a] denial of performance or occurrence shall be made

specifically and with particularity." Assuming, as the trial court did, that section 559.715

imposed a condition precedent to Deutsche Bank's foreclosure action, the burden fell to

the Cresons to first frame that issue, specifically and with particularity, in their answer.

On appeal, they argue that their answer's averment that "Plaintiff failed to comply with

the requirements of . . . § 559.715 Fla. Stat." met that burden. They contend that by

denying Deutsche Bank's general allegation of compliance and then identifying a statute

that, by their reading, contains only one condition precedent (the provision of a notice of

assignment to a borrower), the specificity required by rule 1.120(c) was met. Given the

statute's brevity, the Cresons argue, a general allegation of the noncompliance with the

condition should suffice. We disagree.

              We do not believe the text of rule 1.120(c) supports an alternative

pleading standard for claims where there is arguably only one discrete condition

precedent at issue. Cf. Barco v. Sch. Bd. of Pinellas Cty., 975 So. 2d 1116, 1122 (Fla.

2008) (affriming that a rule of civil procedure "must be given its plain and obvious

meaning" (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984))); S2 Global, Inc. v.




                                             -4-
Tactical Operational Support Servs., LLC, 119 So. 3d 1280, 1283 (Fla. 4th DCA 2013)

(recognizing that when a rule of civil procedure "is clear and unambiguous and conveys

a clear and definite meaning," the plain language of the rule controls). The rule's

language does not brook exceptions for certain kinds of conditions precedent, a point

we recently made when we rejected a similar argument in another foreclosure case.

See Bank of Am., N.A. v. Asbury, 165 So. 3d 808, 811 (Fla. 2d DCA 2015) (reversing

and remanding for new trial where borrower failed to sufficiently allege a denial of a

condition precedent's occurrence because "[r]egardless of whether or not the only

condition precedent for the filing of the bank's lawsuit was the delivery of a default

notice . . . . [T]here is no exception in rule 1.120(c) for claims that have a single

condition precedent to their maintenance").

              Turning, then, to the rule's pleading standard, a denial under rule 1.120(c)

requires more than mere notice of a potential condition precedent. Rather, to construct

a proper denial under the rule, a defendant must, at a minimum, identify both the nature

of the condition precedent and the nature of the alleged noncompliance or

nonoccurrence. As the Fifth District explained in Godshalk v. Countrywide Home Loans

Servicing, L.P., 81 So. 3d 626, 626 (Fla. 5th DCA 2012):

              The purpose of Florida Rule of Civil Procedure 1.120(c) is to
              put the burden on the defendant to identify the specific
              condition that the plaintiff failed to perform—so that the
              plaintiff may be prepared to produce proof or cure the
              omission, if it can be cured. The rule is intended to force a
              defendant to show his hand in advance to avoid surprise.

See also Asbury, 165 So. 3d at 811 (observing that rule 1.120(c) apprises the parties

and the court whether a condition precedent will be an issue at trial "and that the party




                                             -5-
that is presumably in a better position to identify a noncompliance or nonoccurrence

does so within its pleading").

              Here, the Cresons did identify a Florida statute, section 559.715, which,

they contend, was a condition precedent to Deutsche Bank’s filing of a foreclosure

lawsuit. But their answer did not allege how Deutsche Bank failed to satisfy this

statute's requirements. Nor did their denial indicate what within the statute was

supposed to occur but did not. From such a broad assertion of denial, one could

plausibly construe at least three different potential positions on the part of the Cresons:

that Deutsche Bank failed to send any prior notice of an assignment of the mortgage;

that it sent a notice but outside of the thirty-day deadline; or that it sent a timely notice

but failed to adequately inform the borrower of the assignment.2 That is the kind of

pleading ambiguity rule 1.120(c) was meant to ameliorate. See Asbury, 165 So. 3d at

811; Godshalk, 81 So. 3d at 626.

              The Cresons bore the burden of identifying both the nature of the

condition precedent and the nature of its alleged failure before the trial court could

dismiss Deutsche Bank's complaint on any such basis. See Paulk v. Peyton, 648 So.

2d 772, 774 (Fla. 1st DCA 1994). The Cresons failed to meet that pleading requirement




              2
                  It would appear the Cresons may have attempted to clarify their position
within a motion for summary judgment they later filed. In that motion they argued that
"[P]laintiff failed to provide notice of the assignment of the debt to Defendants at least
30 days before filing this action." But a statement in a motion for summary judgment
could not cure the pleading deficiency of the Cresons' answer. Cf. Cooke v. Ins. Co. of
N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA 1995) (holding that where insurance
company failed to plead a condition precedent with specificity and particularity, "it had
no right to demand proof from the plaintiff of conditions precdent that were not
preserved in the pleadings"). The Cresons never sought to amend their answer.


                                             -6-
in their answer. Accordingly, we reverse the circuit court's order of dismissal and

remand this case for further proceedings.

             Reversed and remanded.



ALTENBERND and SALARIO, JJ., Concur.




                                            -7-
