        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                 DONALD MILLER and MARY T. MILLER,
                            Appellants,

                                      v.

THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK,
 as TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWMBS, INC.,
CHL MORTGAGE PASS-THROUGH TRUST 2006-8, MORTGAGE PASS-
  THROUGH CERTIFICATES, SERIES 2006-8, BANK OF AMERICA,
    N.A., successor by merger to COUNTRYWIDE BANK, FSB f/k/a
   COUNTRYWIDE BANK, N.A., OCEAN PEARL II HOMEOWNER’S
ASSOCIATION, INC., UNKNOWN TENANT #1, and UNKNOWN TENANT
                                  #2,
                              Appellees.

                                No. 4D15-36

                              [March 2, 2016]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No.
312013CA000481.

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

   J. Kirby McDonough and S. Douglas Knox of Quarles & Brady LLP,
Tampa, for appellees The Bank of New York Mellon f/k/a The Bank of New
York Mellon As Trustee for the certificate holders of CWMBS, Inc., CHL
Mortgage Pass-Through Trust 2006-8, Mortgage Pass Through
Certificates, Series 2006-8.

DAMOORGIAN, J.

    Appellants, Donald and Mary Miller, appeal a final judgment of
foreclosure in favor of The Bank of New York Mellon (the “Bank”).
Appellants argue that the judgment should be reversed because the Bank
failed to establish that it complied with conditions precedent to filing suit.
Based on the trial court’s finding to the same, we reverse.
    Following a bench trial in front of a magistrate in a routine mortgage
foreclosure action, the trial court entered judgment in favor of the Bank
for past due amounts under the subject note. However, the trial court
declined to award the accelerated amount due under the note based upon
its finding that the Bank did not send proper notice of acceleration as
required by paragraph twenty-two of the mortgage. In awarding the past
due amounts, the court reasoned that “failure to comply with paragraph
[twenty-two] does not affect entitlement to foreclose on past due
installments.”

   Our holding in Holt v. Calchas, LLC, 155 So. 3d 499 (Fla. 4th DCA 2015)
dictates otherwise. In Holt, we explained on rehearing:

       Although in our previous opinion, which is now withdrawn[1],
       we construed paragraph twenty-two as relating to acceleration
       remedies and not past due amounts, upon consideration of
       Holt’s motion for rehearing, we are satisfied that failure to prove
       compliance with paragraph twenty-two at trial requires
       dismissal of the case due to the requirements imposed by
       paragraph twenty of the mortgage, which provides:

             Neither Borrower nor Lender may commence ...
             any judicial action pursuant to this Security
             Instrument or that alleges that the other party has
             breached any provision of, or any duty owed by
             reason of, this Security Instrument, until such
             Borrower or Lender has notified the other party ...
             of such alleged breach and afforded the other party
             hereto a reasonable period after the giving of such
             notice to take corrective action. .... The notice of
             acceleration and opportunity to cure given to
             Borrower pursuant to [paragraph] 22 ... shall be
             deemed to satisfy the notice and opportunity to
             take corrective action provisions of this [paragraph]
             20.

Id. at 507 n.4.

    Paragraph twenty of the mortgage at issue contains identical language
to that quoted in Holt. Accordingly, Holt compels us to conclude that the

   1   The final judgment appealed was rendered before we issued our opinion in
Holt on rehearing and as such, the trial court relied on the withdrawn version of
Holt in awarding the Bank past due amounts.

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trial court erred in entering judgment of foreclosure in favor of the Bank
in light of its finding that the Bank failed to send proper notice of
acceleration as required by the mortgage. Under such circumstances, the
proper remedy was a complete dismissal. Id. In arriving at this
conclusion, we note that the merits of the court’s finding regarding the
Bank’s failure to comply with conditions precedent is not properly before
this court as the Bank did not file a cross-appeal.

   Reversed.

TAYLOR and GERBER, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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