NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT GREEN TREE SERVICING, LLC, ) ) Appellant, ) v. ) Case No. 2D1 4

- 660 ) ERIN C. MILAM and WILLIAM BRETT ) MILAM, ) ) Appellee s. ) ) Opinion filed July 29 , 2015. Appeal from t he Ci rc uit Court for Hillsbor o ugh Coun t y; Perry Little , Senior Judge. Kimberly Hopkins of Shapiro, Fishman & Gach é , LLP, Tampa, for Appellant. Mark P. Stopa of Stopa Law Firm, Tampa, for Appellees.
SALARIO, Judge

.

Green Tree Servicing, LLC , appeals from a final summary judgment entered in favor o f borrowers Erin and William Mi lam in a residential foreclosure action

. Green Tree is a mortgage servicer that was substituted as plaintiff in place of National City Mortgage, the Milams' original mortgage lender. The appeal centers on whether , before filing the com plaint , National City compli ed with paragraph twenty
- two of the- 2

-

mortgage , which required that it notify the Milams of their default o n the note and their rights in connection with that default. The trial court granted the Milams ' motion for summary judgment because it found that National City failed to inform them of their right to reinstatement and to contest default and assert defenses in any foreclosure litigation

. W e disagree , hold that the default notice substantially compl ied with paragraph twenty
two , and reverse.

I. A. On May 16, 2007, the Milams borrowed $318,250 from National City to finance the purchase o f a residence in Tampa. That debt wa s evidenced by a note and secured by a mortgage on the property. R egular payments of principal and interest

were due to be received at an address specified in the mortgage on the first of each month , and failure to make payment as required was deemed a defaul t on the note and mortgage . In the event of a default, Nationa l City ha d the right to accelerate payment of all sums due under the note

— i.e., to demand immediate payment of the full amount of principal and interest

— and foreclose on the mortgage.

Notwithstanding acceleration or foreclosure , the mortgage entitle d the Milams to reinstate their mortgage if they fulfill ed certain conditions. Those conditions include d (1) pay ing all sums due under the mortgage as if no acceleration had occurred; (2) pay ing all expenses incurred by National City in enforcing the mortgage; and (3) taking any other actions National City reasonably require d to ensure that its rights remain unchanged.- 3

- Before National City could accelerate or foreclose , it wa s required to give thirty days' written notice to the Mil ams

. Paragraph twenty
- two of the mortgage states that: Lender shall give notice to Borrower prior to acceleration

following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). 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 Borrow er 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 specif ied 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. The Milams failed to make their Novem ber 1 and December 1 , 2008 , mortgage p ayment s

. On December 10, 2008, National City sent a l etter to the Mil ams demanding that the y cure the default within thirty days

— by January 9, 2009

. It read, in relevant part, as follows:

[I] t is our duty to notify you that you have breached or defaulted in the performance of your obligation under the Note and Mortgage evidencing and securing your loan in the following respect:

* Monthly installment payments have not been made including the payment for November 1, 2008. The action required to cure the breach or default mentioned above on or before January 09, 2009 is as follows:- 4

- * Paymen t in certified funds of $9,683.75 which includes the 111/2009 [sic] installment and applicable late charges, property inspection and non - sufficient funds fees. Failure to cure the breach or default by said date, will result in the acceleration of the maturity date of the N o [sic] , in the declaration that all sums secured by the Deed of Trust are im mediately due and payable, and in this matter being referred to our attorney for whatever action is deemed appropriate and necessary. Should a foreclosure commence, with a resultant sale of the property, you may be liable for any deficiency balance, as pr ovided by law. After acceleration you may still have the right to reinstate by paying all amounts due, as provided in your Note and Mortgage, and all NCM's expenses, including reasonable attorney's fees. You may also have the right to assert, in a forecl osure or other judicial proceeding, the non - existence of default or any other defense you may have to acceleration and foreclosure. (E mphasis added

. ) T he Milams did not comply

.
B. On February 23, 2009, National City filed a foreclosure complaint in the circuit court. O n April 8, 2009 , after the Milams failed to appear, the clerk entered a default against them

. On December 9, 2009, the mortgage was assigned to Green Tree Servicing, LLC, which was thereafter substituted as the plaintiff.

On October 19, 2010, after receiving notice of a hearing on a motion for final summary judgment filed by Green Tree, the Milams appeared and moved to set aside the clerk's default. Green Tree did not oppose the motion, which t he circuit court granted o n October 25, 2010. T he Mil ams thereafter filed an answer in which they made a general denial of all allegations of the complaint and asserted eight affirmative defenses, including that National City failed to give proper notice prior to filing the- 5

-

forecl osure suit

. Over the next eighteen months, the Milams changed lawyers and litigated, among other things, the parties' mediation rights and obligations , discovery, and a motion for summary judgment and for sanctions asserting discovery misconduct by Nationa l City and Green Tree, which t he circuit court denied.

On March 25, 2013, the Milams changed lawyers a second time, and their new counsel filed a second answer. This answer contained specific denials of all material allegations of the complai nt, including a denial of the complaint's allegation that all conditions precedent to suit had been fulfilled or had oc curred. That denial also all eged that National City failed to give notice of the alleged default and an opportunity
to cure as required by paragraph twenty
- two

.

On December 3, 2013, the Milams filed a motion for summary judgment alleging that National City fail ed to comply with the notice requirements of paragraph twenty
- two before filing suit. In particular, they asserted that National City's December 10, 2008 , notice letter failed (1) to specify the default; (2) adequately to apprise the Milams of their right to reinstatement; and (3) to state where payment should be sent.

At a hearing on the motion on January 9, 2014, wi thout objection from National City, the Milams added to this list allegations that the notice improperly included the Milams' January 1, 2009 , mortgage payment , which was not due at the time notice was sent, in the sum the notice required to be paid and failed to apprise the m of their right to assert the nonexistence of a default and other defenses in a foreclosure suit , stating only that they may have that ri ght. T he circuit court announced that , while "I think I can live with" most of the defects alleg ed by the Milams , the failure to apprise the Milams of their rights to reinstatement and to defend foreclosure- 6

-

pr oceedings w as fatal. It entered an order granting the motion and dismissing the complaint without prejudice. T his appeal timely followed.

II. Summary judgment is proper where the movant conclusively demonstrates the absence of any genuine issue of material fact, a matter we review de

novo

. Laurencio v. Deutsche Bank Nat'l Trust Co. , 65 So. 3d 1190, 119 2 (Fla. 2d DCA 2011). The notice requirement of paragraph twenty
- two , a standard mortgage provision , i s a condition precedent to be satis fied by the lender prior to filing a foreclosure suit

. Konsulian v. Busey Bank, N.A. , 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011). The question , then, is whether there is any genuine issue as to whether National City's December 10, 2008 , letter satisfied that contractual condition such that it was entitled to file a foreclosure action . We turn first to the legal standard governing that question. In this case, t here is no dispute that National City delivered a p a r agraph twenty
- two notice or that the notice provided thirty days to respond . Nor is there a dispute that the letter spoke to each of the five items in paragraph twenty
- two : It stated (1) the default (nonpayment); (2) the action required to cure it (payment of $9683.75 , which included the past due payments, the next payment, and certain fees and charges ); (3) a date certain thirty days out by which the default was required to be cured (January 9, 2009); (4) the fact that failure to cure may result in acceleration and foreclosure; and (5) the Milams ' rights to reinstatement and available defense s . The issues presented by the Milams go not to whether the letter spoke to each of paragraph- 7

-

twenty
- t wo' s requirements but rather to whether what National City said was sufficient to satisfy them. The Milams do not assert that the y suffered any harm as a result of any deficiency in National City's notice letter, and they acknowledge that some of what they
assert "might sound technical." T heir position is that precision in fulfilling the condition precedent paragraph twenty
- two establishes is required . The law call s this strict compliance. Green Tree asserts that , when strict compliance has not been tendered, substantial compl iance is sufficient. Our cases do not resolve this dispute. 1

Our cases are clear, however, that we are to interpret and apply the provisions of mortgages the same way we interpret and apply the provisions of any other contract

. See , e.g. , Creamer v. BAC Home Loans Serv icin g, LP , 159 So. 3d 168, 169 (Fla. 2d DCA 2015) (applying ordinary contract principles to interpret fees and costs provision in mortgage); Konsulian , 61 So. 3d at 1285 (interpreting paragraph twenty
- two in accord with ordinary contract principles). In Florida, a party's adherence to contractual condit ions precedent is evaluated for substantial compliance or substantial performance. See, e.g. , Alvarez v. Rendon , 953 So. 2d 702, 708 (Fla. 5th DCA 2007) ( " [T] here must be at least substantial performance of conditions precedent in order to

1 Our cases have generally dealt with situations where the lender has failed to prove that a notice was sent, the borrower was not provided with thirty days to cure, or the letter was silent about one or more of the requirements of paragraph twenty
- two

. Se e, e.g. , DiSalvo v. SunTrust M ortg. , Inc. , 115 So. 3d 438, 441 (Fla. 2d DCA 2013) (reversing summary judgment in favor of lender where lender failed to prove that notice was sent); Judy v. MSMC Venture, LLC , 100 So. 3d 1287, 1289 (Fla. 2d DCA 2012) (reversing summary judgment in favor of lender where notice letter failed to state the default); Konsulian , 61 So. 3d at 1284 (reversing summary judgment in favor of lender where notice letter failed to include th e default and foreclosure suit was filed three days after notice letter).- 8

-

authorize a recovery as for performance of a contract ." (alteration in the original) (quoting Cohen v. Rothman , 127 So. 2d 143, 147 (Fla. 3d DCA 1961) ) ); Grover v. Jacksonville Golfair, Inc. , 914 So. 2d 995, 996 (Fla. 1st DCA 2005) (affirming judgment on option agreement where "there was substantial performance of [ the ] conditions precedent" (alteration in the original) (quoting Racing Props., L.P. v. Baldw in , 885 So. 2d 881, 883 (Fla. 3d DCA 2004) ) (internal quotation marks omitted) ) ; C mty

. Design Corp. v. Antonell , 459 So. 2d 343, 346 (Fla. 3d DCA 1984) (affirming judgment for breach of contract where plaintiff "substantially performed" conditions precedent). We

see no reason
— and the Mil ams do not offer one

— why a condition precedent in a mortgage requiring notice prior to fo reclosure should be treated differently.

The Milams do assert that the Fifth District rejected the notion that a substantial c ompliance analysis applies to paragraph twenty
- two questions in Samaroo v. Wells Fargo Bank, N.A. , 137 So. 3d 1127 ( Fla. 5th DCA 2014). In Samaroo , however, the lender's notice letter failed to speak to the right to reinstate at all

— a violation of paragraph twenty
- two's explicit requirement that a notice letter speak to that right. Id. at 1129 (explaining that the letter "in no way suggests the right to reinstate after acceleration"). In light of the letter's silence on that subject , the Fifth District rejected the lender's argument that it had shown substantial compliance. Id. Contrary
to the Milams' contention, t he court did not hold that the doctrine of substantial compliance does not apply in the paragraph twenty
- two context. I t merely held that the letter's silence on one of paragraph twenty
- two' s requirements precluded the lender's substantial compliance argument.- 9

- In this case, in sharp contrast, there is not a total failure to speak to any of paragraph twenty
- two' s requiremen ts . The question here is whether what the letter did say was sufficiently accurate and complete

. Samaroo does not suggest that th is question should be evaluated for anything ot her than substantial compliance. 2 W e note that courts in other jurisdictions have recognized that this is the appropriate test. See Mayo v. Wells Fargo Bank, N.A. , No. 4: 13cv163, 2015 WL 966042, at *6 (E.D. Va. Mar. 4, 2015) (holding that defects in letter did not bar foreclosure where "[t ]he variance between the language of the Deed of Trust and the acceleration letters was not substantial and did not alter the borrower's rights"); Reese v. Provident Funding Assocs., LLP , 758 S.E.2d 329, 33 1 (Ga. Ct. App. 2014) ("Contrary to the Reese's [s ic]

2 After th e instant case was argued, the Fifth District stated in dicta that a notice letter's variance from paragraph twenty

- two will not preclude a foreclosure action "[a]bsent some prejudice." Gorel v. Bank of New York Mellon , 40 Fla. L. Weekly D1094, D1095 (Fla. 5th DCA May 8, 2015). In so stating, the court relied on Allstate Floridian Ins. Co. v. Farmer , 104 So. 3 d 1242, 1248

- 49 (Fla. 5th DCA 2012 ), which held that an insurer m ay not deny coverage on the basis of an insured's failure to substantially comply with a policy provision requiring the submission of a proof of loss absent a showing of prejudice to the insurer. Because a coverage denial results in a forfeiture to the in sured, prejudice appears to be the requirement in the insurance context for reasons that do not necessarily apply in other contexts

. See State Farm Mut. Auto. Ins. Co. v. Curran , 83 So. 3d 793 , 802 ( Fla. 5 th DCA 2011 ) (" [N] either the failure to timely report a claim, nor the breach of the duty to cooperate, gives rise to the automatic f orfeiture of insurance benefits

. . . . "); see also Am. Fire & Cas. Co. v. Collura , 163 So. 2d 784 , 788 ( Fla. 2d DCA 1964 ) (" In considering the question of breach of a cooperation clause in an insurance policy, it must always be borne in mind that in order for the company to avoid liability by reason of the insured's breach, the company must show that it has exercised diligence and good faith in bringing about the cooperation of the insured, and that it has in good faith complied with the terms and conditions of the policy. On the other hand, the insured is bound to cooperate with his insurer and to abide, both in letter and in spirit, with the terms of the contract; or he should at least be held to reasonably strict compliance with the terms thereof. " (citations omitted))

. There may be room for argument about whether prejudice is required with respect to contractual conditions precedent outside that context, but because we hold that the notice letter here substantially complied with paragraph 22, we need not address the issue here.- 10

-

argument, the written notice sent to them . . . was sufficient because it substantially complied with the acceleration and remedies provision

. . . . "); Fid

. Bank v. Krenisky , 807 A.2d 968, 978 (Conn. App. Ct. 2002) (holding that lender's notice lette r was sufficient where it substantially complied with notice provision of mortgage).

Substantia l compliance or performance is " that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny " the other party the benefit of the bargain. Casa Linda Tile & Marble Installers, Inc. v. Highlands Place 1981 Ltd. , 642 So. 2d 766, 768 (Fla. 4th DCA 1994) (quoting Ocean Ridge Dev. Corp. v. Quality Plastering, Inc. , 247 So. 2d 7 2, 75 (Fla. 4th DCA 1971)); see also 15 Richard A. Lord, Williston on Contracts , § 44.52,
221

- 22 n

. 17 (4th ed. 2000) (explaining that substantial performance excuses a technical breach because "actual performance is so similar to the required performance t hat any breach that may have been committed is immaterial" (quoting Phoenix Mut. Life Ins. Co.

v . Adams , 828 F. Supp. 379, 388 (D.S.C. 1993) ) ) . It is, in essence, the opposite of a material breach of contract that would excuse the nonbreaching party from its obligations. See Legacy Place Ap artment Homes, LLC v. PGA Gat ew ay, Ltd. , 65 So. 3d 644, 644 (Fla. 4th DCA 2011) ("The doctrine of substantial performance is generally unavailable where a party has materially breached the terms of an agreem ent."); 15 Williston on Contracts , § 44:55 at 231. Indeed, Florida courts have sometimes evaluated compliance with conditions precedent by asking whether the alleged variation from the condition was material. See, e.g. , AJH Prop. Invs. Ltd. v. SunTrust B ank , 89 So. 3d 948, 951 (Fla. 3d DCA 2012) ("Thus, the trial c ourt never had the opportunity . . . to determine whether t here was a material breach of the escrow agreement or whether- 11

-

SunTrust had substantially complied."); Starling v. Allstate Floridian In s. Co. , 956 So. 2d 511, 51 3 (Fla. 5th DCA 2007) ("In other words, a material breach of an insured's duty to comply with a policy's condition precedent relieves the insurer of its obligations under the contract.")

.

Applying these principles to p aragraph twenty
- two , then, whe n the content of a lender's notic e letter is nearly equivalent to or varies in only immaterial respects from what the mortgage requires , the letter substantially complie s , and a minor variation from the terms of paragraph twenty
- two sh ould not preclude a foreclosure action

. Where, on the other hand, the lender's notice le tter varies from paragraph twenty

- two in a way that goes to the essence of the parties' bargain, the variation is material and the lender has failed to satisfy a condi tion precedent to the foreclosure action. See, e.g. , Burlington & Rockenbach, P.A. v. Law Offices of E. Clay Parker , 160 So. 3d 955, 960 (Fla. 5th DCA 2015) (holding that a material breach " goes to the essence of the contract, " and that "trivial noncompliance and minor failings" are not material breaches); Beefy Trail, Inc. v. Beefy King Int'l, Inc. , 267 So. 2d 853, 857 (Fla. 4th DCA 1972) (same).

II I
.

Having decided that a lender's adherence to the requirements of paragraph twenty
- two is reviewed for substantial rather than strict compliance, w e first address the circuit court's stated basis for granting summary judgment

— that the notice letter wa s defect ive because it informed the Mil ams only that they "may" have the right to reinstatement and to assert the nonexistence of a default and other defenses they- 12

-

may have in foreclosure proceedings. We treat the issues of reinstatement and defenses to foreclosure proceedings separately.

A.

As to rein statement, the Mila m s contend the notice letter's use of

con ditional "may" fails to comply because paragraph twenty
- two requires that the Mila m s be informed "of the right to re instatement ," which they say commands use of the word shall. O ur recent decision in U.S. Bank Nat ional Ass'n v. Busquets , 135 So. 3d 488 (Fla. 2d DCA 2014) , although not available to the circuit court when it ruled on the Milams' summary judgment motion, resolves this issue against them

.

In Busquets , the trial court granted su mmary judgment to a borrower based on its determination that the lender's notification that a borrower may have a right to reinstatement did not compl y with paragra ph twenty

- two 's requirement that the borrower be informed "of the right to reinstate

. " Id. at 490. We reversed and held that , because the right to reinstatement under the mortgage was conditional and not absolute , the use of the conditional term " may " was appropriate in describing that right. Id. In particular, w e emphasized that any reinsta tement right the borrower enjoyed was, under the terms of the mortgage, contingent on the satisfaction of four conditions that may or may not be satisfied depending on the circumstances. See id. Because the rei nstatement right was contingent on the existence or occurrence of those circumstances , use of the term " may " accurately informed the borrower about that right. Id. For the same reasons, National City's use of the contingent term " may " to describe t he Milam s' reinstatement right was proper

. Specifically, a s in Busquets , any- 13

-

right the Milams had to reinstatement was contingent on the existence or occurrence of the conditions specified in paragraph nineteen of their mortgage. The Mila m s assert , however, that Busquets is distinguishable because , in that case, we noted that the notice letter also "advised [the borrower] to review the terms of his mortgage contract to determine the conditions under which he migh t be eligible for reinstatement, " i d. , a n additional fact the Milam s assert was not present in the notice they received and is
necessary here in order for Busquets to apply

. Our observation in Busquets does not
h ave the significance that the Milam s attribute to it.

Simply put, our observation in Busquets about the letter's reference to the loan documents was not essential to its holding that the letter complied with paragraph twenty
- two . Paragraph twenty
- two obligates the le nder to inform the borrower of the right to reinstatement. It does not obligate the lender to direct the borrower to the loan documents. What was central to Busquets was that the reinstatement right the letter desc ribed was contingent, making its use of the contingent term " may " to describe th e availability of that right lite rally co mpliant with paragraph twenty

- two

. See id. at 490 (stating that a different result "would, in effect, misadvise Busquets of his rights by advising him that he had an absolute right in conflict with the conditional rights provision of the mortgage contract ").

Furthermore, even if we had held in Busquets that paragraph twenty
- two requires reference to the mortgage documents, the result in this case would be the same. National City's notice letter here informed the Mila m s that their right to reinstatement hinged on their "paying all amounts due, as provided in [the] Note and Mortgage

. " T hat language at least substantially complied with any asserted- 14

-

requirement that the letter make reference to the mortgage documents by di recting them to their note and mortgage to determine the contours of their reinstatement right. Either way, then, the notice letter in this case adequately inform ed the Milams of their right to reinstatement.

B.

As framed by the Milams, t he argument with respect to notice of the right to assert the nonexistence of default and other defenses is essentially the same as their argument about notice of the right to reinstatement. Although Busquets did not address whether the term " may " sufficiently descri be d a borrower's right to assert in the foreclosure proceeding the non existence of a default or any other defense , its reasoning applies to that issue with equal force.

Like the right to obtain reinstatement, the right to contest default an d
assert defenses is contingent on other circumstances

— the existence of a basis to do so. A borrower has no right to assert in a judicial proceeding the nonexistence of a default or a defense to foreclosure without any factual or legal basis . To say that the
Mil ams may have a right to assert the nonexistence of a default or other defense s is thus the equivalent of saying "if you have a basis to assert the non existence of a default or another defense, you may do so." Such a statement informs a borrower of his or her right in a judicial foreclosure proceeding to contest default and assert defenses

.

T hat does not fully resolve this case , however, because National City's notice letter contain ed a second " may " with respect to the assertion of defenses. It stated that "[y]ou may also have the right to asser t

. . . any other defense you may have to acceleration and foreclosure." ( E mphasis supplied

. ) A literal reading of th e second- 15

-

" may " in the sentence does not strictly comply with paragraph twenty
- two because in judicial foreclosure proceedings borrowers do have the absolute right to assert those defenses they may have, subject to the rules of procedure and other applicable law.

But National City's notice letter did substantially compl y with paragraph twenty
- two

. The purpose of the c ontractual requirement that a borrower be notified of his or her right to assert defenses

— to ensure that borrowers are informed before suit is filed that they are not required to take a foreclosure complaint lying down and can defend the case if so inclined

— is evident from the face of the document

. See Krenisky , 807 A.2d at 978. National City's letter conveys that much to a ny reasonable reader and , for that reason, does not vary fr om the requirements of paragraph twenty
- two in any material respect. Confirming that conclusion, the Mil ams themselves derived from National City's letter precisely the understanding paragraph twenty
- two contemplates ;

a fter receiving the foreclosure complaint, they attempted to negotiate a modification and, thereafter, retained counsel and defended the action vigorously. T he notice letter thus substantially complied with paragraph twenty
- two , and it was error for the tr ial court to find the notice insufficient on this basis

. See, e.g. , Nationstar M or tg

. , L.L.C. v. Wagener , 2015

- Ohio

- 1289 (Ohio Ct. App. Apr. 2, 2015) (holding that notice that informed borrower of right to bring a court action to contest default or assert defenses adequately informed borrower of right to assert defenses in a foreclosure proceeding where defendant actually appeared and asserted defenses).

IV
.
T he Mil ams argue that the circuit court's summary judgment should nonetheless survive on a right

- for

- the

- wrong - reason rationale

. See Curtis v. Tower Hill- 16

-

Prime Ins. Co. , 154 So. 3 d 1193, 1197 (Fla. 2d DCA 2015). As they did in the circuit
court , they assert that National City's letter failed to (1) specify the default; (2) accurately compute the payment required to cure the defau lt and reinstate the mortgage ; and (3) specify the address to which that payment must be sent

. W e disagree that any of these issues render the notice deficient or support an affirmance of the summa ry judgment

.
A.
The Milams assert that paragraph twenty
- two 's requirement that a notice letter "specify

. . . the default" obligated National City to identify in its letter each monthly payment the Milams missed. Based on the plain language of paragraph twenty
- two , we reject that argument. National City informed the Mil ams that they were in default because "monthly payments have not been made, including the payment for November 2008." A failure to make monthly payments is one of multiple ways in which a borrower can default , and the letter stated that this was the type of default alleged

. It further identified the November 2008 payment, which was the first payment the Milams' missed

. The next payment in December 2008 was missed as well, a fact that was known to or easily knowable by the Milams. Under these undisputed facts, t he letter was sufficiently explicit and detailed to preclude any legitimate misunderstanding about the default alleged by the bank and, t hus, to literally comply wi th the requirement that the notice letter "specify

. . . the default

. " See Fla. League of Cities v. Smith , 607 So. 2d 397, 399 (Fla. 1992) ( relying upon legal and other dictionary definitions defining "specify" as, among other things, " [ t ] o mention specifically" and "to point out" as well as a "statement explicit, detailed, and specific so that misunderstanding is impossible" (alteration in the original) ). Furthermore, even assuming the contractual obligation to- 17

-

specify the default could be read to require that each missed payment be listed, in a

case like this one where the borrower has missed consecutive payment s beginning with the one explicitly mentioned in the letter, the tendered performance was so close to the performance called for that any variation is without consequence , and National City substantially complied with the contractual notice provisions of the mortgage. See generally Casa Linda Tile , 642 So. 2d at 768 (concluding that it is unreasonable to deny the rights of a party to a contr act where that party's performance "is . . . nearly equivalent to " the bargained

- for performance (quoting Ocean Ridge Dev. , 247 So. 2d at 75) )

.
B.

Speaking to paragraph twenty
- two 's requirement that a preacceleration notice "specify

. . . the action required to cure the default," National City's December 10,
2008 , letter stated that the required action was payment on or before January 9, 2009 , in certified funds of $9683.75, which i ncluded the missed payments , the January 1,
2009 , payment , and various fees and charges

. 3 The Milams contend that the letter was fatally defective because the January 1, 2009 , payment was not due when the letter

was sent. A lthough the parties appear to assume that Nati onal City was not entitled under the note and mortgage to demand the January 1, 2009 , payment as part of the

3 The letter erroneously referred to the "111/2009 payment." However, a reasonable reader wo uld not have interpreted this as referring to anything other than the January 1, 2009 , payment, which was the next payment due. W e reject the Mil ams' argument that this immaterial error requires dismissal of the case.- 18

-

cure of the noticed default

— a question we need not and do not decide

— the letter substantially complied with paragraph twenty
- two regardless

. Id.

The essential purpose of th e requirement that a notice letter "specify

. . . the action required to cure the default" is again clear from the face of the mortgage. It ensures that the borrower is informed of the lender's determination of what the borrower must do to bring the loan out of default. Although the January 1, 2 009 , payment was
not due when the letter was sent on December 10, 2008, the payment was due on January 1, 2009, eight days before the due date specified in the letter. U nder the terms of the note a nd mortgage, the failure to make that payment would keep the loan in default. The inclusion of the January 1, 2009 , payment would have become relevant only if the Milams had intended to make payment of the past due sums and bring the loan out of default b efore the January payment came due . There is no evidence of that here. Moreover, the notice expressly stated that the January payment was included

— it did not hide the ball

— and i f the Mil ams disagreed, the letter provided a phone number for the Milams to call to resolve any discrepancy over the amount required to get the loan out of default. 4 Under these circumstances , the addition to a notice letter of a single payment th at was due a few weeks after that letter was sent but

4 Relying on Singleton v. Greymar Assoc iate s , 882 So. 2d 1004 (Fla. 2004), the Milams argue that a default on the January 1, 2009 , payment would be a separate default requiring a separate paragraph twenty
- two notice. Singleton held that "when a second and separate action for foreclosure is sought for a default that involves a separate period of default from the one alleged in the first action, the case is not necessarily barred by res judicata." Id. at 1006

- 07. It does not follow that a borrower's continuing and uninterrupted failure to make monthly payments

— as existed in this case
— requires a new paragraph twenty
- two notice letter for each instance in which the borrower fails to pay.- 19

-

before the due date for cu re is an immaterial variation from what paragraph twenty
- two required. While there may be a case in which the lender's specification of the "action
requ ired to cure the default" is inaccurate in a way that preclude s a finding of substantial compliance , this is not that case

.
C

.

The Milams argu e that pa ragraph twenty
- two 's requirement that National City's notice letter "specify

. . . the acti on required to cure the default " required it to specify an address to which payment should be sent. On the co ntrary, under the plain language of the note and mortgage, the action required to cure the default is the payment of the sums due under those documents. A statement of the address to which payment must be sent is no more a statement of the action required to cure default than a statement that the envelope must be stamped or deposited into a mailbox. The action required to cure default is what the borrower must do to bring the loan out of default. As described above, National City's letter substantially complied with that obligation. Id.

Moreover, the address to which that payment was to be mailed was easily ascertainable by the Milams in one of two ways. The first was by reference to the terms of the note, which specified that monthly pay ments were to be made to the address stated therein or any other address identified in writing by the lender , and the mortgage, which stated that payments are deemed received by the lender when received at the location specified in the note. The second wa s by calling the customer care telephone number identified in the letter. Because the letter specified the action required to cure default and the ancillary information concerning the address was known to or easily- 20

-

obtainable by the Milams, we conclude wi th no difficulty that Natio nal City's letter complied with the terms of paragraph twenty
- two in this regard

.
V.
Paragraph twenty
- two is designed to ensure that a borrower receives essential information concerning his or her default, how to cure it, and his or her rights with respect to it. It 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 . The notice letter here either actually or substantially complied with all of the requirements of paragraph twenty
- two , and it was thus error for the trial court to enter summary judgment in favor of the Milams . Accordingly, we reverse the final summary judgment and remand the case to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded. WALLACE , J. , C oncur s

. CRENSHAW, J., C oncurs in result only.