NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DOUGLAS C. EDMONDS and )
ARCHONDOULA N. EDMONDS, )
)
Appellants, )
)
v. ) Case No. 2D15-2590
)
U.S. BANK NATIONAL ASSOCIATION; )
JP MORGAN CHASE BANK, NATIONAL )
ASSOCIATION, )
)
Appellees. )
)
Opinion filed April 5, 2017.
Appeal from the Circuit Court for
Lee County; James R. Thompson,
Senior Judge.
Mark P. Stopa of Stopa Law Firm, Tampa,
for Appellants.
Ira Scot Silverstein of Ira Scot Silverstein,
PLLC, Fort Lauderdale, for Appellee U.S.
Bank National Association.
No appearance for Appellee JP Morgan
Chase Bank, National Association.
SILBERMAN, Judge.
After a nonjury trial, Douglas C. Edmonds and Archondoula N. Edmonds
appeal a final judgment of foreclosure entered in favor of JP Morgan Chase Bank,
National Association (JP Morgan). Because the appellees failed to establish that notice
of default was given as required by paragraph 22 of the mortgage, which was a
condition precedent to filing suit, we reverse the final judgment and remand for the trial
court to enter an order of involuntary dismissal.
The condition precedent issue is dispositive of this appeal. Thus, we do
not address the other issues that the Edmonds raise. However, we note that the record
reflects somewhat of a procedural quagmire, which is the reason we have listed both JP
Morgan and U.S. Bank National Association (U.S. Bank) as appellees. See Fla. R. App.
P. 9.020(g)(2).
By way of background, the original lender was Chase Bank USA, N.A.
(Chase). JP Morgan filed the foreclosure complaint and attached a copy of the note
indorsed in blank. Prior to trial, JP Morgan filed a motion to substitute U.S. Bank as
party plaintiff. At trial, counsel appeared for U.S. Bank, and the trial court asked if an
order on the motion to substitute had ever been entered. The parties asserted that an
order had been entered, but U.S. Bank's counsel could not find it in the file. Our record
does not contain an order on the motion to substitute, and the trial court docket does not
reflect that the trial court ever ruled on the motion. The final judgment identifies JP
Morgan as the plaintiff and makes no mention of U.S. Bank. The Edmonds' notice of
appeal identifies U.S. Bank as the plaintiff (now appellee), but their initial brief identifies
JP Morgan as the appellee. The style of the answer brief lists JP Morgan as the
appellee, but counsel specifies that the brief is filed on behalf of U.S. Bank. For ease of
reference, we refer to the appellees as the Plaintiff unless otherwise required by the
context.
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With this background in mind, we turn to the issue of the notice of default.
Paragraph 22 of the mortgage requires, among other things, that the lender give the
borrowers notice of default and an opportunity to cure the default prior to acceleration of
the debt. Paragraph 15 specifies that notices to the borrowers shall be deemed to have
been given when they are mailed by first class mail or when actually delivered to the
borrowers' notice address. In its complaint, JP Morgan alleged that it complied with all
conditions precedent. In their answer, the Edmonds denied that JP Morgan gave the
required notice of the alleged default and an opportunity to cure.
At trial, Vonterro White testified as a default specialist for Fay Servicing,
LLC, the servicer for U.S. Bank. He acknowledged that another company had been the
prior servicer for the loan. Among the documents introduced into evidence over the
Edmonds' objection were four default letters dated January of 2014, identifying JP
Morgan as the entity giving notice of default. A "welcome letter" was also introduced
into evidence, reflecting that Fay Servicing became the servicer in August of 2014,
several months after the date of the default letters and after JP Morgan had filed suit.
The Plaintiff did not produce any return receipts, a mailing log, or any documentary
evidence to show that the default letters were in fact mailed or delivered.
When questioned about one of the default letters White testified, over
objection, that he knew the letter was mailed because it was addressed to the
borrowers at the property address. He added that it "is the business practice to send
letters on loans that are delinquent and these letters are sent every month." However,
he admitted that he had never worked for Chase or JP Morgan. At the conclusion of
this testimony the defense again objected, challenging both the testimony and the
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admission of the default letters into evidence. Defense counsel argued that White's
testimony was as to Fay Servicing's practices and procedures rather than Chase's or JP
Morgan's and reiterated that White had not worked for Chase or JP Morgan. The trial
court overruled the objection.
At the conclusion of the Plaintiff's case, the defense moved for an
involuntary dismissal. The defense contended, among other things, that the Plaintiff
failed to prove the default letters were mailed. The trial court denied the motion and
entered a final judgment of foreclosure.
The Edmonds again argue, and we agree, that the Plaintiff failed to prove
that it gave the required notice under the mortgage because it did not show that the
default letters were mailed or actually delivered; thus, the Plaintiff failed to establish a
condition precedent to suit. Although the letters were admitted into evidence, the fact
that they were drafted is insufficient by itself to show that they were mailed. See Allen
v. Wilmington Trust, N.A., No. 2D15-2976, slip op. at 3 (Fla. 2d DCA Mar. 24, 2017);
see also Burt v. Hudson & Keyse, LLC, 138 So. 3d 1193, 1195 (Fla. 5th DCA 2014)
(recognizing that the plaintiff had produced a letter but had offered no proof that it was
mailed). A company's routine business practice may give rise to a rebuttable
presumption of mailing, but "the witness must have personal knowledge of the
company's general practice in mailing letters." Allen, slip op. at 4; see also § 90.406,
Fla. Stat. (2014); CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA
2016) (recognizing that the witness had personal knowledge of the plaintiff company's
mailing practices).
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White's testimony reflected no knowledge of JP Morgan's mailing
procedures or practices, and he was never employed by JP Morgan, the entity that
drafted the letters. Rather, he only testified as to a "normal course of business" of
mailing letters in general. This testimony was insufficient to prove that the letters were
mailed. See Allen, slip op. at 4 (determining that testimony was insufficient to establish
routine business practice of mailing letters when the witness was never employed by or
had personal knowledge of the mailing practices of the predecessor servicer that
drafted the letter at issue). Thus, the failure to prove that the default letters were mailed
or actually delivered and that the notice under paragraph 22 was given requires that we
reverse the final judgment and remand for the trial court to enter an order of involuntary
dismissal. See id. at 5; Blum v. Deutsche Bank Trust Co., 159 So. 3d 920, 920 (Fla. 4th
DCA 2015).
Reversed and remanded with directions.
SLEET and BADALAMENTI, JJ., Concur.
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