       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 21, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2815
                         Lower Tribunal No. 10-42936
                             ________________


                Federal National Mortgage Association,
                                    Appellant,

                                        vs.

                            Mauricio J. Linares,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Marvin H.
Gillman, Senior Judge.

     Levine Kellogg Lehman Schneider + Grossman, LLP and Jeffrey C.
Schneider, Stephanie Hauser and Victor Petrescu, for appellant.

      The Ticktin Law Group, P.A., Peter Ticktin, Josh Bleil, Kendrick Almaguer
and Simon Lassel (Deerfield Beach), for appellee.

Before SUAREZ, C.J., and SHEPHERD and FERNANDEZ, JJ.

      FERNANDEZ, J.
      On September 6, 1996, Mauricio J. Linares executed a promissory note and

mortgage. Linares defaulted under the note and mortgage when he failed to make a

payment due April 1, 2010, and all payments thereafter. Federal National

Mortgage Association (Fannie Mae) subsequently sought to foreclose on the

mortgage. Paragraph twenty-one (21) of the mortgage required Fannie Mae to

advise Linares of the default prior to filing a foreclosure action. Paragraph 21 of

the mortgage provides:

             21. Acceleration; Remedies. 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. The notice
             shall further inform Borrower of the right to reinstate
             after acceleration and the right to assert in the foreclosure
             proceeding the non-existence of a default or any other
             defense of Borrower to acceleration and foreclosure.

Linares received a default notice, which stated in pertinent part:

             If you fail to cure the default within thirty-two (32) days
             from the date of this notice, [Fannie Mae’s servicer] will
             accelerate the maturity of the Loan, terminate your
             credit line if the Loan provides for revolving advances,
             declare all sums secured by the Mortgage immediately
             due and payable, and commence foreclosure
             proceedings, all without further notice to you. … If
             permitted by your loan documents or applicable law,
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             you have the right to reinstate after acceleration of the
             Loan and the right to bring a court action to assert the
             non-existence of a default, or any other defense to
             acceleration, foreclosure, and sale.

      Fannie Mae subsequently filed a foreclosure action against Linares. Linares

then filed an answer and affirmative defenses, in which he asserted that Fannie

Mae’s default notice did not comply with the requirements of the mortgage, and

therefore did not satisfy the conditions precedent to filing the action.

      At the non-jury trial, Linares moved for an involuntary dismissal on the

ground that the default notice failed to comply with paragraph 21 because (1) it did

not inform Linares of a “judicial” sale of the property, and (2) it did not state that

Linares had the right to raise defenses in a foreclosure proceeding. In response,

Fannie Mae argued that the default notice was sufficient because it substantially

complied with paragraph 21 of the mortgage. The trial court found that there is no

such thing as substantial compliance with a condition precedent and granted the

motion for involuntary dismissal.

      On appeal, the sole issue is the adequacy of the default notice. We conclude

that the trial court erred when it granted the motion because the default notice

substantially complied with paragraph 21 of the mortgage. Consequently, the

default notice was adequate.

      A court must interpret mortgage provisions just as it would interpret

provisions of a contract. U.S. Bank Nat'l Ass'n v. Busquets, 135 So. 3d 488, 490
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(Fla. 2d DCA 2014). In Florida, a party can enforce a contractual agreement so

long as that party has substantially complied with all conditions precedent. See

Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 13 (Fla. 2d DCA 2015) (a

party’s adherence to contractual conditions precedent is evaluated for substantial

compliance or substantial performance); Allstate Floridian Ins. Co. v. Farmer, 104

So. 3d 1242, 1246 (Fla. 5th DCA 2012) (there must be at least substantial

compliance with conditions precedent in order to authorize performance of a

contract). A default notice required by a mortgage is sufficient so long as it

substantially complies with a mortgage’s condition precedent. Bank of N.Y.

Mellon v. Nunez, 180 So. 3d 160, 163 (Fla. 3d DCA 2015).

      In the present case, the default notice substantially complied with paragraph

21 of the mortgage. Linares argued that the default notice was deficient because it

stated that the property would be subject to a foreclosure proceeding rather than a

judicial proceeding. However, the default notice adequately informed Linares of

the proceeding because in Florida all foreclosures are judicial proceedings.

Busquets, 135 So. 3d at 490.

      Furthermore, Linares argued that the notice failed to inform him of his right

to raise defenses in the foreclosure proceeding, and instead informed him that he

has the right to bring a court action to assert any defenses to acceleration,

foreclosure, and sale. The default notice adequately informed Linares of his right

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to raise defenses to the foreclosure as evidenced by the fact that he raised defenses

in his answer to the complaint, and successfully obtained an involuntary, although

erroneous, dismissal.

      For the foregoing reasons, we hold that the default notice substantially

complied with paragraph 21 of the mortgage because it adequately informed

Linares of the judicial proceeding and his right to raise defenses. Accordingly, we

reverse and remand for entry of a judgment in favor of Fannie Mae.

      Reversed and remanded with instructions.




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