WALLACE R. COOK AND SUPPORT 100 PROPERTY MANAGEMENT, LLC AS TRUSTEE OF THE 967 VANTAGE LAND TRUST DATED DECEMBER 20, 2013
v.
BANK OF AMERICA, N.A.
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Bank of America sought to foreclose on a mortgage held by Wallace R. Cook and Support 100 Property Management, LLC. The appellate court reversed the foreclosure judgment because Bank of America failed to prove it complied with the mortgage requirement to send a notice of default and acceleration letter.
Bank of America failed to prove by competent substantial evidence that it complied with the requirement to mail a notice of default and acceleration letter. Because the lender did not meet its burden of proof on this essential element, it was not entitled to judgment in its favor and the foreclosure must be reversed.
[1] A lender must establish that notice of default was given as required by the mortgage agreement, which serves as a condition precedent to filing a foreclosure suit.
[2] The mere drafting of default letters is insufficient, by itself, to prove that the letters were mailed or delivered to the borrower.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A lender may prove that a default letter was sent by providing: (1) the testimony of a witness with personal knowledge that a default letter was sent; (2) evidence of a routine business practice of the entity drafting and mailing the letter; or (3) evidence in the record such as an affidavit or a return receipt to prove that the letter was sent.”
Establishes the three permissible methods for proving compliance with the mortgage requirement to send a default letter.
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Join FLexlaw to unlock all legal intelligenceBank of America initiated foreclosure proceedings against the appellants who owned the mortgaged property. The mortgage agreement contained a paragrap…
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EDWARDS, J.
Appellants, Wallace R. Cook and Support 100 Property Management, LLC as Trustee of the 967 Vantage Land Trust, appeal the order of the trial court granting a foreclosure in favor of Bank of America, Appellee.
Appellants raised the affirmative defense that Appellee failed to comply with mailing a notice of default and acceleration letter as required by paragraph 22 of the mortgage. Because Appellee failed to prove by competent substantial evidence that it complied with that requirement, we reverse the final judgment.
A lender may prove that a default letter was sent by providing: (1) the testimony of a witness with personal knowledge that a default letter was sent;
(2) evidence of a routine business practice of the entity drafting and mailing the letter; or (3) evidence in the record such as an affidavit or a return receipt to prove that the letter was sent. See Mace v. M&T Bank, 292 So. 3d 1215, 1219 (Fla. 2d DCA 2020).
At trial, over Appellants’ objection, Appellee presented the testimony of Ms. James who had no first-hand knowledge as to whether that letter had been mailed. The only proof of mailing the letter was Ms. James’ testimony that she saw information in a document, which indicated the letter had been mailed, contained on Appellee’s computer system. However, whatever document she looked at to gain that information was not introduced in 2 evidence. Where a timely hearsay objection is made, a witness may not testify about the contents of a business record if that record was not properly introduced into evidence. See Sas v. Fed. Nat'l Mortg. Ass'n, 112 So. 3d 778, 779 (Fla. 2d DCA 2013).
Ms. James testified that she was familiar with Appellee’s business practices, but her explanation did not include the mailing procedures that may have been used here. No affidavit of mailing, mail logs, or return receipts were offered in evidence. Therefore, because Appellee failed to prove it complied with paragraph 22, it was not entitled to entry of judgment in its favor. See Madl v. Wells Fargo, 244 So. 3d 1134, 1137 (Fla. 5th DCA 2018); Figueroa v. Fed. Nat'l Mortg. Ass'n, 180 So. 3d 1110, 1117 (Fla. 5th DCA 2015).
We reverse the final judgment of foreclosure entered in favor of
Appellee and remand with instructions to enter an order granting Appellants’ motion for involuntary dismissal. 1 By a separate order, we grant
Appellants’ motion for appellate attorney’s fees. See J.P. Morgan Mortg.
Acq. Corp. v. Golden, 98 So. 3d 220, 223 (Fla. 2d DCA 2012).
REVERSED AND REMANDED WITH INSTRUCTIONS.
1 We need not reach other issues raised by Appellants. 3 COHEN and WALLIS, JJ., concur. 4
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Cook v. Bank of Am., N.A., 292 So. 3d 1215 (Fla. 5th DCA 2021)…at a default letter was sent; (2) evidence of a routine business practice of the entity drafting and mailing the letter; or (3) evidence in the record such as an affidavit or a return receipt to prove that the letter was sent. See Mace v. M&T Bank, 292 So. 3d 1215, 1219 (Fla. 2d DCA 2020). At trial, over Appellants’ objection, Appellee presented the testimony of Ms. James who had no first-hand knowledge as to whether that letter had been mailed. The only proof of mailing the letter was Ms. James’ testimony t…
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IVY Chase Apt. Prop. v. IVY Chase Apts., 352 So. 3d 33 (Fla. 2d DCA 2022)…testified based on his personal knowledge of the amounts of indebtedness. However, the record reflects that Mr. Geigle did not have personal knowledge of the amounts owed beyond his familiarity with Elizon's business records. See Mace v. M&T Bank, 292 So. 3d 1215, 1220 (Fla. 2d DCA 2020) ("[T]estimony by a witness without personal knowledge is inadmissible and . . . testimony based on what people or documents say, when offered for the truth of the matter, is hearsay and, when unaccompanied by any showing th…
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Savoy v. Am. Platinum Prop. & Cas. Ins., 363 So. 3d 1102 (Fla. 4th DCA 2023)…urthermore, the corporate representative’s statements that various letters were mailed required additional proof. The mere fact that a letter was drafted “is not enough to allow a trial court to infer that the letter was mailed.” Mace v. M&T Bank, 292 So. 3d 1215, 1219 (Fla. 2d DCA 2020). Instead, a witness generally must: (1) have personal knowledge of the mailing, (2) provide evidence of routine mailing practices, or (3) provide records of the mailing, such as a log or return receipt. Id. at 1219-20. The…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- SAS v. Fed. Nat'l Mortg. Ass'n, 112 So. 3d 778 (Fla. 2d DCA 2013)
- Figueroa v. Fed. Nat'l Mortg. Ass'n, 180 So. 3d 1110 (Fla. 5th DCA 2015)
- Madl v. Wells Fargo Bank, 244 So. 3d 1134 (Fla. 5th DCA 2017)
- Cook v. Bank of Am., N.A., 292 So. 3d 1215 (Fla. 5th DCA 2021)
- J.P. Morgan Mortg. Acquisition Corp. v. Gideon Golden, 98 So. 3d 220 (Fla. 2d DCA 2012)