      IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH
                                 DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


BAYVIEW LOAN SERVICING, LLC,

             Appellant,

v.                                                    Case No. 5D14-3296

JESSICA LYNN CLAYTON HEEFNER,
ETC., ET AL.,

             Appellees.

________________________________/

Opinion filed July 29, 2016

Appeal from the Circuit Court
for Orange County,
Emerson R. Thompson, Jr., Senior Judge.

Steven C. Rubino and Matthew A. Ciccio,
of Aldridge Connors, LLP, Delray Beach,
for Appellant.

Peter Ticktin, Kendrick Almaguer and
Michael S. Wickenhauser, of The
Ticktin Law Group, P.A., Deerfield Beach,
for Appellees, Jessica Lynn Clayton
Heefner a/k/a Jessica Lynn C. Heefner
and Zachery James Heefner.

No Appearance for other Appellees.

BERGER, J.

      Bayview Loan Servicing, LLC (“Bank”) appeals the trial court's order involuntarily

dismissing its foreclosure complaint against Jessica Lynn Clayton Heefner and Zachary
James Heefner ("Borrowers") for failure to prove compliance with conditions precedent

to foreclosure. Based on Borrowers' concession of error regarding the exclusion of the

acceleration letter and payment history on hearsay grounds, and because the

acceleration letter substantially complied with paragraph 22 of the mortgage, we

reverse.

         As Borrowers properly concede, the acceleration letter and payment history

should have been admitted under the business records exception to the hearsay rule as

explained in Le v. U.S. Bank, 165 So. 3d 776, 778 (Fla. 5th DCA 2015) and Nationstar

Mortgage, LLC v. Berdecia, 169 So. 3d 209, 213-16 (Fla. 5th DCA 2015). Nevertheless,

they invoke the tipsy coachman doctrine1 to argue that the trial court's order involuntarily

dismissing the case should be affirmed on the basis that the acceleration letter did not

comply with paragraph 22 of the mortgage because it did not inform Borrowers of their

right to raise defenses to foreclosure in Bank's foreclosure case. Specifically, Borrowers

argue that the acceleration letter constituted a material breach of the condition

precedent in paragraph 22 of the mortgage because it informed Borrowers they would

have to bring an independent proceeding to assert their defenses rather than asserting

them in the foreclosure proceeding.

         Bank contends that the acceleration letter substantially complied with paragraph

22 of the mortgage and that Borrowers were not prejudiced by the language in the letter

because they actively litigated the case and filed affirmative defenses. We agree.

         While the notice required by paragraph 22 of the mortgage prior to acceleration

constitutes a condition precedent to foreclosure, "[a]bsent some prejudice, the breach of



         1
             See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla.
1999).
                                              2
a condition precedent does not constitute a defense to the enforcement of an otherwise

valid contract." Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 47 (Fla. 5th DCA 2015)

(citing Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1248-49 (Fla. 5th DCA

2012)).      The standard is whether the party seeking foreclosure has substantially

complied with the conditions precedent. See Lopez v. JPMorgan Chase Bank, 187 So.

3d 343,

345 (Fla. 4th DCA 2016); Bank of N.Y. Mellon v. Nunez, 180 So. 3d 160, 162 (Fla. 3d

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

Indeed, "when the content of a lender's notice letter is nearly equivalent to or varies in

only immaterial respects from what the mortgage requires, the letter substantially

complies, and a minor variation from the terms of paragraph twenty-two should not

preclude a foreclosure action." Milam, 177 So. 3d at 14-15.           Paragraph 22 of the

mortgage "is not a technical trap designed to forestall a lender from prosecuting an

otherwise proper foreclosure action because a borrower, after the fact, decides that the

letter might have been better worded." Id. at 19.

    Language in the acceleration letter informing a borrower of the right to assert defenses

and challenge the existence of the default by filing a separate action is not prejudicial

when the borrower actually appears and asserts defenses in the foreclosure case. See

Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923, 926-27 (Fla. 4th DCA 2016) (citing

Bank of N.Y. Mellon v. Johnson, 185 So. 3d 594, 597 (Fla. 5th DCA 2016)); Milam, 177

So. 3d at 19. As Bank correctly notes, here, Borrowers retained counsel, appeared in

the foreclosure case, filed an answer to the foreclosure complaint with affirmative

defenses, and asserted their defenses at trial. Even if we were to find the language to

be a material breach, which we decline to do, Borrowers cannot establish prejudice.

                                               3
    Accordingly, we reverse the order of the trial court involuntarily dismissing Bank’s

foreclosure complaint and remand for further proceedings consistent with this opinion.


          REVERSED and REMANDED.

TORPY and LAMBERT, JJ., concur.




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