Face-to-face counseling requirement

"Is a condition precedent, not an affirmative defense. Bank bore the burden of proving it had met the condition precedent pursuant to section 203.604.” ​​On June 28, 2018,  the First District Court of Appeal, in Chrzuszcz v.  Wells Fargo Bank,  Case No. 1D16-3239, 43 Fla. L. Weekly D1486a (1st DCA June 28, 2016),   held that the “trial court erred in denying a motion for involuntary dismissal where Plaintiff failed to comply with HUD regulation requiring that the bank either have face-to face interview with borrower or make reasonable attempt to do so prior to initiating foreclosure action.” At trial the Bank offered no testimony regarding whether the Bank complied with the face-to-face counseling requirement, after the Borrower argued that the Bank failed to comply with same. The Bank argued that compliance with HUD regulations are an affirmative defense, as opposed to a condition precedent, and that the Borrower had failed to plead noncompliance.  Relying on Palma v. JPMorgan Chase Bank, 208 So. 3d 771 (Fla. 5th DCA 2016) the First District Court of Appeal held that face-to-face counseling requirement is not an affirmative defense, but rather a condition precedent, similar to that of paragraph 22 requirement in the mortgage, and that the Bank bears the burden of proving same.