          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D16-1624
                 _____________________________

DYCK-O'NEAL, INC.,

    Appellant,

    v.

HEATHER LANHAM,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Gadsden County.
Martin A. Fitzpatrick, Judge.

                        February 18, 2019

         ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

     This case arises from the foreclosure of Heather Lanham’s
residential property in Gadsden County, Florida. After acquiring
the rights arising from the foreclosure judgment, Dyck-O’Neal,
Inc., filed suit against Lanham to recover the deficiency balance
due under the assigned obligation. Lanham moved for summary
judgment, arguing that Dyck-O’Neal failed to provide timely notice
of the assignment under section 559.715, Florida Statutes, and
that such notice was a condition precedent to bringing the
deficiency action. The trial court agreed, and this appeal followed.

    We initially quashed the trial court’s order for lack of subject
matter jurisdiction over the deficiency action based on then-
controlling caselaw. Dyck-O’Neal, Inc. v. Lanham, 214 So. 3d 802,
802 (Fla. 1st DCA 2017). On review, the Florida Supreme Court
disagreed with this Court’s precedent and held “that section
702.06, Florida Statutes (2014), permits an independent action at
law for a deficiency judgment when the foreclosure court has
expressly reserved jurisdiction to handle a deficiency claim but has
not actually decided the merits of the claim.” Dyck-O’Neal, Inc. v.
Lanham, 257 So. 3d 1, 3 (Fla. 2018). The supreme court quashed
our decision and remanded for further proceedings.

     The issue now before this Court is whether the trial court
erred when it granted final summary judgment for Lanham. Dyck-
O’Neal argued below as it does on appeal that the notice-of-
assignment requirement in section 559.715 does not act as a
condition precedent to bringing a deficiency action. * We agree.

     Section 559.715 is part of the Florida Consumer Collection
Practices Act. §§ 559.55-559.785, Fla. Stat. It provides that an
“assignee [of consumer debt] 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.” § 559.715,
Fla. Stat.

     In Brindise v. U.S. Bank National Association, mortgage
debtors appealed a foreclosure judgment due to the judgment
creditor’s failure to provide them with written notice of the
assignment of their mortgage prior to filing suit. 183 So. 3d 1215,
1217 (Fla. 2d DCA 2016), rev. denied, SC 16-300, 2016 WL 1122325
(Fla. 2016). The Second District affirmed the final judgment,
holding that “the notice described in section 559.715 is not a
condition precedent to foreclosure.” Id. at 1216. The court
reasoned, in part, that “[s]ection 559.715 has no language making
written notice of assignment a condition precedent to suit.” Id. at
1219. The court observed that


    *  We decline to address Dyck-O’Neal’s argument, raised for
the first time on appeal, that a deficiency action is not an action to
collect a consumer debt under section 559.715. For purposes of this
opinion, we assume arguendo that Dyck-O’Neal is an “assignee”
under section 559.715.

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    [t]he Legislature, of course, knows how to condition the
    filing of a lawsuit on a prior occurrence. It has done so,
    for example, for libel and slander actions. §§ 770.01-.02,
    Fla. Stat. (2014). Before a victim of alleged medical
    malpractice can file a negligence suit, the victim must
    engage in a rigorous presuit investigation and discovery
    process. §§ 766.203-.206, Fla. Stat. (2014). In the
    condominium context, the Legislature has mandated that
    the parties engage in an alternative dispute resolution
    process before seeking trial court relief. § 718.1255(4),
    Fla. Stat. (2014). The Legislature knows how to create a
    condition precedent. Because the Legislature declined to
    be more specific when enacting section 559.715, we will
    not expand the statute to include language the
    Legislature did not enact.

Id. Following the same rationale, the Fourth District also rejected
a debtor’s attempt to use the notice-of-assignment requirement in
section 559.715 to defeat a mortgage foreclosure action. Bank of
Am., N.A. v. Siefker, 201 So. 3d 811, 817 (Fla. 4th DCA 2016) (“The
plain language [of section 559.715] does not impose a bar on filing
suit if notice is not provided consistent with the statute and that
makes this case distinguishable from the opinions relied on by the
borrower, which all involve unambiguous statutory language
providing a bar to suit if a specified act was not satisfied.”).

     This Court has since cited Brindise with approval in
Nationstar Mortgage, LLC v. Summers, 198 So. 3d 1162 (Fla. 1st
DCA 2016) (reversing final summary judgment in favor of
borrowers on authority of Brindise), and McCall v. HSBC Bank
USA, N.A., 186 So. 3d 1134 (Fla. 1st DCA 2016) (affirming
judgment for lender on authority of Brindise). Lanham argues
these cases are distinguishable because they involved mortgage
foreclosure cases—not actions to collect deficiencies—and do not
include any discussion or analysis. However, we see no reason why
the rationale adopted by this Court in the mortgage foreclosure
context should not apply to an action for a deficiency decree based
on a foreclosure judgment. Specifically, section 559.715 contains
no language indicating compliance with the notice requirement is
a condition precedent to debt collection. See Brindise, 183 So. 3d at
1219 (“Focusing solely on whether the foreclosure suit is an effort

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to collect a consumer debt, the parties urge us to become ensnared
unnecessarily in a briar patch. We need not fight their fight. Even
if a foreclosure suit is an effort to collect a consumer debt, several
reasons compel us to conclude that the trial court did not err.”); see
also Wright v. Dyck-O’Neal, Inc., 237 F. Supp. 3d 1218, 1221 (M.D.
Fla. 2017) (concluding “it is irrelevant that this action stems from
a deficiency judgment rather than a mortgage foreclosure” as “§
559.715 does not create a condition precedent because the Florida
Legislature did not draft it that way”); cf. Merrill v. Dyck-O’Neal,
Inc., 745 F. App’x. 844, 847 (11th Cir. 2018) (concluding there is
no “persuasive indication” that the Florida Supreme Court would
reject the Brindise line of cases and holding that section 559.715
does not create a condition precedent to debt collection); Nat'l
Collegiate Student Tr. 2007-1 v. Lipari, 224 So. 3d 309, 311 (Fla.
5th DCA 2017) (holding that section 559.715 does not create a
condition precedent to collection of student loan debt and noting
that “[t]he Legislature knows how to create a condition precedent
when it so desires”).

    We therefore reverse the order granting final summary
judgment and remand for further proceedings.

WOLF, RAY, and MAKAR, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Susan B. Morrison of the Law Offices of Susan B. Morrison,
Tampa, for Appellant.

Rick A. Savage of Savage Law Office, Tallahassee, for Appellee.




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