DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GWENDOLYN DENTON,

Appellant,

v.

HSBC BANK USA, N.A., AS TRUSTEE FOR THE REGISTERED 

HOLDERS OF FIRST NLC TRUST 2007-1 MORTGAGE-BACKED 

CERTIFICATES, SERIES 2007-1,

Appellee.

No. 4D18-2146

[February 5, 2020]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Barry J. Stone, Senior Judge; L.T. Case No. 

CACE15011708 (11).

Jerome L. Tepps of Jerome L. Tepps, P.A., Sunrise, for appellant.

Kimberly S. Mello and Joseph H. Picone of Greenberg Traurig, P.A., 

Tampa, for appellee.

WARNER, J.

Appellant, a homeowner (Homeowner), challenges a final judgment of 

foreclosure. Homeowner contends that the trial court erred in finding that 

the Appellee, HSBC Bank USA, N.A. (Bank), as Trustee for the Registered 

Holders of First NLC Trust 2007-1 Mortgage-Backed Certificates, Series 

2007-1, had substantially complied with the notice of default conditions

precedent, because Bank failed to provide a full thirty-day notice to the 

Homeowner to cure the default, as provided in paragraph 22 of the 

mortgage. Further, Homeowner contends that the trial court erred by 

finding that Bank had proved that the Homeowner was not prejudiced, 

even though Bank had not filed a reply to Homeowner’s affirmative defense 

of failure to comply with conditions precedent. We affirm. Bank alleged 

compliance with the conditions precedent. Homeowner responded alleging 

a failure to comply with conditions precedent. Homeowner also alleged a 

lack of good faith ability to cure the default, which we conclude amounts 

to a claim of prejudice necessary to support a claim of material breach of 

the condition. Bank was not required to file a reply. Homeowner failed to 
2

prove any prejudice, and Bank proved Homeowner never attempted to cure 

the default. The court did not err in entering final judgment of foreclosure.

Bank filed a foreclosure action against Homeowner and later filed a 

Second Amended Complaint for mortgage foreclosure. In the operative 

complaint, Bank alleged Homeowner executed and delivered a note and 

mortgage to Bank, as well as several loan modifications. Of import on 

appeal, Bank pled: “[a]ll conditions precedent to the acceleration of this 

mortgage note and to foreclosure of the mortgage have occurred.” 

Paragraph 22 of the mortgage set forth the conditions precedent and 

provided: “[l]ender shall give notice to Borrower prior to acceleration 

following Borrower’s breach . . . . The notice shall specify . . . a date, not 

less than 30 days from the date the notice is given to Borrower, by which 

the default must be cured[.]”

Homeowner filed an Answer and Affirmative Defenses to the Second 

Amended Complaint generally denying all the complaint’s allegations and 

asserting five affirmative defenses. This appeal deals with the third 

affirmative defense which stated:

Plaintiff has failed to satisfy all conditions precedent to 

bringing this action and enforcing the loan documents under 

Florida law. Specifically, Plaintiff [failed] to provide the 

Borrower with a Notice of Default and Intent to Accelerate as 

required by and/or that complies with Paragraphs 15 and 22 

of the subject MORTGAGE. Plaintiff failed to attach copies of 

such notice to the Complaint. Furthermore, Plaintiff has 

failed to provide proof of mailing of any Notice of Default and 

Intent to Accelerate in compliance with the requirements 

specified in Paragraphs 15 and 22 of the Mortgage. As a 

result, the Defendant has been denied a good faith 

opportunity, pursuant to the Mortgage and the servicing 

obligations of the Plaintiff, to avoid acceleration and this 

foreclosure. 

Bank did not reply to Homeowner’s Answer and Affirmative Defenses.

At the non-jury trial on the foreclosure, Bank introduced into evidence 

the original mortgage and note, together with indorsements. It also 

introduced two default letters, the first dated February 15, 2012 and one 

dated August 2, 2014, which required cure of the default on or before 

September 1, 2014. Homeowner cross-examined Bank’s witness as to the 

date that the second default letter was mailed, which the witness could 

not conclusively establish. Ultimately, the court found that the letter was 
3

mailed at least six days late, giving Homeowner only twenty-four days to 

cure the default. Because the court found that Bank failed to prove a 

condition precedent, it entered an involuntary dismissal of the complaint.

Bank filed a motion for rehearing arguing that Bank had substantially 

complied with the condition precedent, and Homeowner was not 

prejudiced by Bank’s failure to exactly comply with the time requirements 

of the notice provision. At the hearing, Bank argued that there was no 

prejudice to Homeowner because of the length of time that she was in 

default based on Vasilevskiy v. Wachovia Bank, National Association, 171 

So. 3d 192 (Fla. 5th DCA 2015), and Gorel v. Bank of New York Mellon, 165 

So. 3d 44 (Fla. 5th DCA 2015). Homeowner argued at the hearing that 

Bank failed to reply to the answer and affirmative defense of failure to 

comply with the condition precedent. Homeowner claimed that if Bank

had alleged in a reply that Homeowner was not prejudiced, then

Homeowner would have testified as to her efforts to reinstate the note. The 

court granted Bank’s motion for rehearing and entered final judgment of 

foreclosure.

Homeowner filed a motion for new trial and a memorandum in support 

arguing that Homeowner was entitled to a new trial to provide evidence to 

refute Bank’s contention that Homeowner was not prejudiced by the 

improper default letter and to present evidence to refute Bank’s contention 

that Homeowner did not try to reinstate her loan with Bank. Bank filed a 

response arguing that in her affirmative defense Homeowner failed to deny 

the performance of conditions precedent with specificity as required by 

law. The court denied the motion, and Homeowner now appeals.

Homeowner argues that the court erred in granting Bank’s motion for 

rehearing, because Bank failed to reply to Homeowner’s answer and 

affirmative defenses. She claims that in order to avoid her affirmative 

defense that Bank failed to perform a condition precedent, Bank was 

required to allege a lack of prejudice. We disagree that Bank was required 

to reply to the affirmative defense. Homeowner had the obligation under 

her affirmative defense to allege and then prove prejudice. She did allege

that she was not given a good faith opportunity to cure the default, which 

was an allegation of prejudice.

As an element of its cause of action of foreclosure, Bank alleged the 

performance of all conditions precedent. See Fla. R. Civ. P. 1.120(c) (“In 

pleading the performance or occurrence of conditions precedent, it is 

sufficient to aver generally that all conditions precedent have been 

performed or have occurred.”). In the context of foreclosures, we have held 

that this means “substantial compliance.” Ortiz v. PNC Bank, Nat’l Ass'n, 
4

188 So. 3d 923, 925 (Fla. 4th DCA 2016) (“As an initial matter, we take 

this opportunity to clarify that substantial compliance with conditions 

precedent is all that is required in the foreclosure context.”). “Substantial 

compliance 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 [party] the [benefit].’” Id. (citations 

omitted).

Florida Rule of Civil Procedure 1.120(c) also provides that “[a] denial of 

performance . . . shall be made specifically and with particularity.” 

Homeowner alleged generally that Bank failed to provide her with notice 

which complied with Paragraph 22 but did not explain in what respect it 

did not comply. The affirmative defense did not allege that the default 

notice did not provide thirty days to cure the default. Yet Homeowner did 

allege that she was not given a good faith opportunity to cure the default 

and avoid acceleration. This, we believe is tantamount to an allegation 

that the breach of the condition constituted a material breach, namely one 

that caused prejudice. See Gorel v. Bank of New York Mellon, 165 So. 3d 

44, 47 (Fla. 5th DCA 2015) (“Absent some prejudice, the breach of a 

condition precedent does not constitute a defense to the enforcement of an 

otherwise valid contract.”). Since Bank simply denied the allegation of 

prejudice, it was not required to file a reply to avoid it.

We recognize that in Citigroup Mortgage Loan Trust Inc. v. Scialabba,

238 So. 3d 317, 323 (Fla. 4th DCA 2018), we stated that lack of prejudice 

from a bank’s defective default notice was an avoidance, which should 

have been pled by the bank in response to the homeowner’s allegation of 

failure to substantially comply with a condition precedent. Our comments 

were essentially dicta, because we determined that even if the bank failed 

to allege lack of prejudice, the issue was tried by consent. Whether lack 

of prejudice constitutes an avoidance to an affirmative defense of denial of 

performance of a condition precedent will usually depend upon the specific 

allegations of the affirmative defense.1 Here, we conclude that 

Homeowner’s affirmative defense alleged that she was prejudiced, and 

thus Homeowner was required to prove her affirmative defense. Therefore, 

there was no requirement that Bank file a reply in avoidance.

1 If we were required to reconsider our statement in Scialabba, we would conclude 

that prejudice is an essential element of an affirmative defense that a condition 

precedent was materially breached. Thus, the burden would be on the proponent 

of the defense to prove prejudice sufficient to warrant the avoidance of the 

contract. 
5

Finally, this allegation of prejudice was refuted on the record. 

Homeowner offered no testimony to support her allegation that she was 

denied a good faith opportunity to cure the default. Moreover, Bank’s 

witness testified that no payments were made on the mortgage after the 

default notice was sent. Suit was not filed until eleven months later. See 

Vasilevskiy v. Wachovia Bank, Nat’l Ass’n, 171 So. 3d 192 (Fla. 5th DCA 

2015) (determining that no prejudice was shown where a default notice 

gave less than thirty days for cure date, because suit was not filed until 

four months later, and appellant did not file an amended answer raising 

defective notice for four years).

For the foregoing reasons, the trial court did not err in granting Bank’s 

motion for rehearing and entering final judgment of foreclosure for Bank,

because Bank proved substantial compliance with a condition precedent. 

Nor did the trial court err in rejecting Homeowner’s contention on 

rehearing that Bank could not rely on lack of prejudice because Bank had 

not pled it in avoidance of Homeowner’s affirmative defense. We thus 

affirm the final judgment of foreclosure.

Affirmed.

TAYLOR and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.