Wells Fargo v. Rio Poco HOA: A Pre-Suit Mediation Defense Cannot Be Decided Outside the Complaint

Pre-suit mediation under section 720.311 is a condition precedent to many homeowners’ association lawsuits, and arguments about whether it was done correctly are common early in a case. On May 6, 2026, Florida’s Fourth District Court of Appeal held that those arguments generally cannot be resolved on a motion to dismiss when the complaint alleges that the condition was performed or waived ¹. The court reversed the dismissal of a lender’s suit against Rio Poco Homeowners’ Association in Palm Beach County ¹.

The Dispute

Wells Fargo, as trustee for a mortgage trust, acquired title to a home in the community through foreclosure ¹. Its lawsuit concerned the amounts the association represented as due in an estoppel certificate and the association’s denial of access to the property after Wells Fargo took title ¹.

The complaint alleged that Wells Fargo had sent a demand for pre-suit mediation under section 720.311, and that all conditions precedent to suit “have been performed, waived, or have occurred” ¹. After a default was entered against the association, the association moved to vacate it and to dismiss, arguing that Wells Fargo had not complied with the statute’s requirements for the method and address of service of the demand ¹. The trial court vacated the default and dismissed the case, finding that the demand was not served at the association’s address by certified mail. In doing so, it relied on the demand attached to the complaint, but also on the association’s response to the demand and emails between the parties, which were not attached ¹.

What the Court Held

The Fourth District reversed the dismissal ¹. A motion to dismiss tests the legal sufficiency of the complaint, so the court’s review is confined to the complaint itself and the exhibits attached to it ¹. Under Florida Rule of Civil Procedure 1.120(c), a plaintiff may allege generally that all conditions precedent have been performed or have occurred, and may likewise allege waiver generally ¹.

The court recognized that a complaint must be dismissed if it pleads neither satisfaction nor waiver of a statutory condition precedent, but explained that remaining factual issues about compliance are premature on a motion to dismiss ¹. The parties disputed whether the attached demand itself showed noncompliance with the statute’s service requirements, but the court did not need to decide that question. Wells Fargo had also alleged waiver, nothing in the complaint or its exhibits negated that allegation, and the factual issue of waiver precluded dismissal ¹.

Practical Points on Service of the Demand

The statute is specific about service. The demand must substantially follow the statutory form and go out two ways, by certified mail with a return receipt requested and by regular first-class mail, addressed to the responding party at the most recent address listed in the association’s books and records ². The responding party then has 20 days from mailing to respond in writing by the same two methods, to the address shown on the demand ². A party’s failure to respond, agree on a mediator, pay fees on time or appear operates as an impasse by that party ².

Several lessons follow for counsel on both sides:

• Serve by both methods and keep the proof. Certified mail with return receipt and a first-class copy, to the correct address, avoids the argument entirely ².
• Plead conditions precedent, including waiver. A general allegation that conditions were performed, occurred or were waived preserved Wells Fargo’s case at the pleading stage ¹.
• Respond in writing. An association that engages with a demand, even informally by email, may later face a waiver argument when it challenges the form of service. The court did not decide that issue here, but it left it for the trial court as a factual question ¹.
• Consider simply mediating. The cost of litigating whether a demand was properly served can exceed the cost of the mediation the statute contemplates, and the parties share the mediator’s fee equally unless they agree otherwise ².

Tony Roca, a Florida Supreme Court Certified Circuit Civil Mediator, conducts pre-suit mediation required for many homeowners’ association disputes under section 720.311, by Zoom statewide. Counsel and boards can check his live availability and book a mediation.