FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D16-1624

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DYCK-O'NEAL, INC.,

Appellant,

v.

HEATHER LANHAM,

Appellee.

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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-
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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. DyckO’Neal argued below as it does on appeal that the notice-ofassignment 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.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Susan B. Morrison of the Law Offices of Susan B. Morrison, 

Tampa, for Appellant.

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