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Joe DiSalvo, III, and Elizabeth Ann DiSalvo challenge the entry of a 
summary judgment resulting in a final judgment of foreclosure. Because the 
mortgagee, SunTrust Mortgage, Inc., failed to present competent evidence that it
provided the DiSalvos with the requisite notice and an opportunity to cure the default 
before the acceleration of the mortgage debt, we reverse.


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/June/June%2019,%202013/2D11-2707.pdf
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Justin
So in other words conditions precedent isn't actually an affirmative defense in Florida after all?  Doesn't this decision say that satisfaction of conditions precedent is an essential element of a plaintiff's cause of action for which the plaintiff (rather than the defendant) bears the burden of proof?

That is how it works in most states.

Didn't someone post something about here at the Forum this a couple of years ago?
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Kirk
First, a mortgagee's right to the security for a mortgage is dependent upon its compliance with the terms of the mortgage contract, and it cannot foreclose until it has proven compliance. See F.A. Chastain Constr., Inc. v. Pratt, 146 So. 2d 910, 913 (Fla. 3d DCA 1962).

Says it all. Plaintiff bears the burden of proof!
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Kirk
""An affirmative defense allows the defendant to introduce evidence to establish an independent reason why the plaintiff should not prevail; it does not rebut the factual proposition of the plaintiff's pleading." Hassell Constr. Co. v. Stature Commercial Co., 162 S.W.3d 664, 667 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (emphasis added); see also Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996) (noting that mere denial of a plaintiff's claims is not an affirmative defense). For example, recognized affirmative defenses to breach of contract such as modification,[12] failure of consideration,[13] statute of frauds,[14] ratification,[15] material breach,[16] and duress[17] either admit or do not engage the plaintiff's allegations of breach but assert other, independent facts as a basis for negating liability that the defendant must plead and prove.

. . . [*412]

See Associated Indem. Corp. v. CAT Contracting, Inc., 964 [*413] S.W.2d 276, 283 (Tex.1998) ("A party seeking to recover under a contract bears the burden of proving that all conditions precedent have been satisfied.")."

[i]Mullins v. TestAmerica, Inc., 564 F. 3d 386, 411-3 (5th Cir. 2009)[/b]
http://scholar.google.com/scholar_case?case=1747746370391998423
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James T.

This DiSalvo case is a great addition to the growing body of Florida law supporting the conditions precedent argument:

Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1284-5 (Fla. 2nd DCA 2011)
http://scholar.google.com/scholar_case?case=15413974693633729431
Lazurian v. CitiMortgage, Inc., 35 So.3d 189, 189-90 (Fla. 4th DCA 2010)
http://scholar.google.com/scholar_case?case=16713806196709472724


Mr. Roper posted several Florida cases on this topic more than two years ago:

The Conditions Precedent Affirmative Defense
http://ssgoldstar.discussioncommunity.com/post/The-Conditions-Precedent-Affirmative-Defense-5059262

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Emily
"Any condition precedent to the right to maintain an action must be performed or complied with, unless it is dispensed with, or prevented by some act of defendant; and the fact of performance or excuse of nonperformance must be alleged and proved in order to warrant a recovery." 1 Corpus Juris 976, § 72.

See also 1 C.J.S., Actions, § 25.
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