DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE v. JAMES SHEARD A/K/A JAMES BELL SHEARD

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

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

DEUTSCHE BANK NATIONAL TRUST )
COMPANY, as trustee, on behalf of )
the holders of the J.P. Morgan )
Mortgage Acquisition Trust 2007-CH1)
Asset Backed Pass-Through )
Certificates, Series 2007-CH1, )
)
Appellant, )
)
v. ) Case No. 2D17-1911
)
JAMES SHEARD a/k/a JAMES BELL )
SHEARD; CHASE BANK USA, )
NATIONAL ASSOCIATION f/k/a )
CHASE MANHATTAN BANK, USA )
N.A.; CITIBANK (SOUTH DAKOTA) )
NA; UNITED STATES OF AMERICA, )
DEPARTMENT OF THE TREASURY, )
INTERNAL REVENUE SERVICE; )
UNKNOWN TENANT #1; ANY AND )
ALL UNKNOWN PARTIES CLAIMING )
BY, THROUGH, UNDER AND )
AGAINST THE NAMED INDIVIDUAL )
DEFENDANT(S) WHO ARE NOT )
KNOWN TO BE DEAD OR ALIVE, )
WHETHER UNKNOWN PARTIES MAY )
CLAIM AN INTEREST AS SPOUSES, )
HEIRS, DEVISEES, GRANTEES, OR )
OTHER CLAIMANTS, )
)
Appellees. )
___________________________________)

Opinion filed June 8, 2018.

Appeal from the Circuit Court for Lee
County; Thomas S. Reese, Senior Judge.

Joseph T. Kohn and Benjamin B. Brown of
Quarles & Brady, LLP, Naples, for
Appellant.

Roy W. Foxall of Roy W. Foxall, P.A., Fort
Myers for Appellee James Sheard a/k/a
James Bell Sheard.

No appearance for remaining Appellees.

KHOUZAM, Judge.

Deutsche Bank National Trust Company (the Trust) timely appeals the

order dismissing its foreclosure action against James Sheard. The court dismissed the

suit based on Sheard's claim at trial that he did not receive the default notice letter

because the Trust sent it to the wrong address. Regardless of whether it was

appropriate for the trial court to consider Sheard's defense in the first place, an issue we

do not need to address, the Trust showed substantial compliance with the notice

requirements. Accordingly, we reverse and remand for the trial court to enter a final

judgment of foreclosure in favor of the Trust.

The record shows that Sheard admitted in response to a request for

admissions that the Trust had sent the notice letter and that he had indeed received it.

These admissions were never withdrawn or amended. Sheard also failed to provide a

witness and exhibit list prior to trial, even though the Trust had sent him a request for a

pretrial meeting to exchange exhibits to be used at trial. Despite these circumstances,

the main issue at trial became Sheard's defense that he had never received the notice

letter because it was sent to the property address instead of his secondary mailing

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address. The Trust objected to Sheard presenting this defense because he never

provided a witness and exhibit list, which would have indicated that Sheard's receipt of

the letter was at issue. Perplexingly, the Trust neglected to bring Sheard's admissions

on this exact point to the court's attention during trial. Over the Trust's objection,

Sheard introduced testimony and documents into evidence in support of his defense.

The court ultimately granted Sheard's motion to dismiss based on a finding that the

Trust had failed to comply with a condition precedent because the notice of default letter

was mailed to the wrong address. On rehearing, the Trust argued that it was unfairly

surprised by Sheard's defense in part because of Sheard's admissions. The motion for

rehearing was denied.

On appeal, the Trust argues that, for multiple reasons, it was improper for

the trial court to allow any evidence on the issue of whether the default letter had been

mailed or received. We decline to address this issue because, regardless of whether

the defense was appropriately considered, we agree with the Trust that the evidence

presented did not support involuntary dismissal. Rather, it showed that the Trust had

substantially complied with the notice requirements.

A mortgage is interpreted and applied like any other contract, and, "[i]n

Florida, a party's adherence to contractual conditions precedent is evaluated for

substantial compliance or substantial performance." Green Tree Servicing, LLC v.

Milam, 177 So. 3d 7, 13 (Fla. 2d DCA 2015). Paragraph 15 of the mortgage provides

that "[a]ny notice to Borrower in connection with this Security Instrument shall be

deemed to have been given to Borrower when mailed by first class mail or when

actually delivered to Borrower's notice address if sent by other means" and "[t]he notice

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address shall be the Property Address unless Borrower has designated a substitute

notice address by notice to Lender." Here, the evidence showed that the Trust had sent

the notice letter to the property address. Though there was evidence that Sheard had

at one point designated a substitute address, the servicer's records indicated that it was

no longer needed. Specifically, the Trust's witness, a case manager for the current

servicer, stated that the substitute address used by the prior servicer was no longer

necessary and so correspondence was sent to the property address pursuant to

paragraph 15 of the mortgage.

This evidence shows that the servicer reasonably relied on its records

indicating that the property address was the appropriate notice address. Moreover, the

property address was a valid address for Sheard and next door to his secondary

address. Under these circumstances, the servicer substantially complied with the notice

requirements set forth in the mortgage.

Accordingly, we reverse the circuit court's order dismissing the Trust's

foreclosure action against Sheard. And because the Trust otherwise established its

right to foreclose, we remand for the trial court to enter a final judgment of foreclosure in

the Trust's favor. See Hawthorne, 197 So. 3d at 1241.

Reversed and remanded with instructions.

LaROSE, C.J., and LUCAS, JJ., Concur.

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