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Conditions Precedent Case Law

Paragraph 22 of the subject mortgage provided:

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. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.

The Promissory Note also provided for the sending of a notice of default in paragraph 7(c) which provided:

Notice of Default

If I am in default, the Note Holder may send me a written notice telling me that that if I do not pay the overdue amount by a certain date the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me.

Prior to the Fifth District Court of Appeal’s ruling in Samaroo v. Wells Fargo, citation pending, (Fla. 5th DCA, March 24, 2014) [39 Fla. L. Weekly D670a], Case 5D13-1585, there was a split amoung many circuit judges as to whether the legal standard for evaluation of whether a notice of default complied with paragraph 22 of the mortgage was substantial compliance v. actual compliance. See e.g., U.S. Bank v. Nelson, 20 Fla. L. Weekly Supp 563b, (Fla. 11th Judicial Circuit, Miami-Dade, 2013, Judge Daryl Trawick), rejecting substantial compliance and Astoria Federal Savings v. Kaufman, 21 Fla. L. Weekly Supp 171a, (Fla. 18th Judicial Circuit, Brevard County, 2013 Judge O.H. Eaton) applying substantial compliance standard.

The Fifth District Court appeal in Samaroo rejected the substantial compliance standard holding:

Wells Fargo contends that it “substantially” complied with the contractual notice requirements, an argument we cannot credit. None of the cases cited by Wells Fargo involved compliance with pre-acceleration notice requirements contained in a mortgage. Its own mortgage specified the important information that it was bound to give its borrower in default, and it simply failed to do so. Id.

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The plaintiff’s burden to prove properly-denied conditions precedent has been well-settled law for decades. See, e.g. Sheriff of Orange County v. Boultbee, 595 So.2d 985, 987 (Fla. 5th DCA 1992) (proper denial of conditions precedent shifts burden to plaintiff to prove performance); Fidelity & Cas. Co. of New York v. Tiedtke, 207 So.2d 40, 42 (Fla. 4th DCA 1968), quashed on other grounds,222 So.2d 206 (Fla.1969) (upon proper denial of condition precedent, plaintiff had burden to prove performance of condition precedent); Griffin v. American General Life And Accident Ins. Co., 752 So. 2d 621, 623 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2556d] (“the party seeking to enforce a contract has the burden to prove the satisfaction of a condition precedent”); Berg v. Bridle Path Homeowners Ass’n, 809 So.2d 32, 34 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D305c] (“It is well settled in Florida law that the plaintiff is required to prove every material allegation of its complaint which is denied by the party defending against the claim.”); McKenna v. Camino Real, 877 So.2d 900, 902 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1681a] (“[O]nce McKenna filed the Affirmative Defenses asserting the Association’s failure to comply with the requirements in the Declaration and Bylaws, the Association had the burden to prove that it complied with the requirements in its Declaration and Bylaws.”).

The appellate courts have repeatedly emphasized that compliance with paragraph 22 of the mortgage is a mandatory condition precedent to acceleration of the debt and foreclosure of the mortgage. E.g.,Disalvo v. SunTrust Mortgage, Inc., 38 Fla. L. Weekly D1355a (Fla. 2d DCA June 19, 2013),Kurian v. Wells Fargo Bank, N.A., 38 Fla. L. Weekly D1226 (Fla. 4th DCA June 5, 2013); Judy v. MSMC Venture, LLC, 100 So.3d 1287 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D2711a]; Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2448a];Valencia v. Deutsche Bank National Trust Co., 67 So.3d 325 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1337a]; Laurencio v. Deutsche Bank National Trust Co., 65 So.3d 1190 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1600b]; Goncharuk v. HSBC Mortgage Services, Inc., 62 So.3d 680 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1097b]; Konsulian v. Busey Bank, NA., 61 So.3d 1283 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1164c]; Sandoro v. HSBC Bank, USA National Association, 55 So.3d 730 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D499b]; Lazuran v. Citimortgage, Inc., 35 So.3d 189 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1292b]; Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1575b].

The word “shall” in the mortgage expressly creates mandatory conditions precedent which must be satisfied. Konsulian, 61 So.3d at 1285. In accordance with Florida Law and judicial interpretations with regard to contractual interpretation, the language contained in paragraph 22 of the mortgage is an express, mandatory condition precedent. See Frost, 15 So. 3d at 905; Lazuran, 35 So. 3d at 189;Konsulian, 61 So.3d at 1284.

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