DANIEL ROMAN AND NOEMI ROMAN, APPELLANTS,
v.
WELLS FARGO BANK, APPELLEE
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Homeowners Daniel and Noemi Roman appealed a summary foreclosure judgment entered in favor of Wells Fargo Bank, arguing that a genuine issue of material fact existed because they did not receive notice of default. The court affirmed, holding that because the mortgage required only mailing of notice, not actual receipt, Wells Fargo's affidavit proving it mailed the notice established the material facts necessary for summary judgment.
The court rejected the Romans' argument. Because the express language of the mortgage required only that Wells Fargo mail notice, not that the Romans receive it, the Romans' claim of non-receipt does not establish a genuine issue of material fact. Wells Fargo's affidavit establishing that it mailed the notice was sufficient to support summary judgment.
[1] A mortgage provision requiring notice to be mailed, rather than actually received, is satisfied by proof of mailing.
[2] A borrower's assertion of non-receipt of a notice of default does not create a genuine issue of material fact if the mortgage only requires mailing.
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Join FLexlaw to unlock all legal intelligence“Because the express language of the mortgage only required that Wells Fargo mail notice, not that the Romans receive it, we reject the Romans' argument.”
Establishes the core holding that the mortgage's mailing requirement is sufficient regardless of actual receipt.
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Join FLexlaw to unlock all legal intelligenceDaniel and Noemi Roman were in default on their mortgage with Wells Fargo Bank. Wells Fargo mailed notice of default to the Romans as required by the …
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Daniel and Noemi Roman appeal from a summary final judgment of foreclosure in favor of Wells Fargo Bank. We affirm in all respects and write only to address the Romans’ argument that a genuine issue of material fact should have precluded summary judgment given their averment that they did not receive Wells Fargo’s notice of default. Because the express language of the mortgage only required that Wells Fargo mail notice, not that the Romans receive it,1 we reject the Romans’ argument. Wells Fargo established by affidavit that it mailed notice to the Romans as required by the mortgage. That is the material fact. See, e.g., Jackson v. Wells Fargo Home Mortg., N.A., No. 2120513, — So.3d—, 2014 WL 1098998 (Ala.Civ.App. March 21, 2014) (holding that borrower’s assertion that he or she did not receive notice of default “does not establish a genuine issue of material fact regarding whether [the notice] was sent as required by the mortgage instrument”); Coleman v. BAC Servicing, 104 So.3d 195, 205 (Ala.Civ.App.2012) (rejecting borrower’s argument that genuine issue of material fact created by her denial that she had received notice where the mortgage only required mailing); Deutsche Bank Nat’l Trust Co. v. Seplowitz, No. CV075001419, 2007 WL 2757463, *1 (Sup.Ct.Conn. Sept. 12, 2007) (rejecting borrower’s argument that he never received notice of default and intent to accelerate where no dispute that lender mailed it; noting, “[a]ctual receipt of the notice is unnecessary if the mortgage documents lack such a provision”); Ne. Savings, F.A. v. Scherban, No. 930134439, 1996 WL 571466, *2-3 (Sup.Ct. Conn. Sept. 25, 1996) (same). Griffin v. Bierman, 403 Md. 186, 941 A.2d 475, 481-82 (2008) (finding that mortgage provision deeming mailing as sufficient notice did not violate due process principles); U.S. Bank Nat’l Ass’n v. Martz, No.2013-P-0028, 2013 WL 5635986 (Ohio Ct.App. Oct. 15, 2013) (affirming summary judgment, finding sufficient notice where lender mailed notice and rejecting argument that fact issue created by assertion that borrower did not receive it); U.S. Bank Natl. Assn, as Tr. c/o GMAC Mortg., L.L.C. v. *491 Weber, No. 12AP-107, 2012 WL 6669213 (Ohio Ct.App. Dec. 20, 2012) (“[AJppellee submitted affidavit evidence that the notice of default was mailed to Christopher Weber pursuant to the terms of the note and mortgage. Further, appellants submitted no contrary evidence on this issue.”); Taylor v. Countrywide Home Loans, No. 08-cv-13258, 2010 WL 750215, *4 (E.D.Mich. March 3, 2010) (“Pursuant to the terms of the Mortgage, a notice is ‘deemed to have been given to Borrower when mailed by first class mail ....’ Nothing in the Mortgage requires that the Borrowers (plaintiffs), actually receive notice for notice to have been given.”).
AFFIRMED.
COHEN and LAMBERT, JJ., concur.
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Martins v. PNC Bank, 170 So. 3d 932 (Fla. 5th DCA 2015)…provide that the lender complies with the notice requirement by mailing the notice, there is no genuine issue of material fact as to the notices sent if the lender establishes via an affidavit that the notices were mailed. Roman v. Wells Fargo Bank, 143 So. 3d 489, 490 (Fla. 5th DCA 2014). Paragraph fifteen of the subject mortgage provides that any notice to the Borrower “shall be deemed to have been given to Borrower when mailed by first class mail.” Here, Thomas’ deposition testimony did not prove that eit…
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U.S. Bank Nat'l Ass'n v. Doepker, 223 So. 3d 1083 (Fla. 2d DCA 2017)
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Green Tree Servicing LLC v. Raju Sanker, 204 So. 3d 496 (Fla. 4th DCA 2016)…Eckert, 472 So. 2d 807, 809 (Fla. 4th DCA 1985) (“[W]hen something is mailed by a business, it is presumed that the ordinary course of business was followed in mailing it and that the mail was received by the addressee.”); Roman v. Wells Fargo Bank, 143 So. 3d 489, 490 (Fla. 5th DCA 2014) (holding that the plaintiff is not required to prove that the borrowers received the notice when the express language of the mortgage required only that the plaintiff mail the notice via first class mail). Mr. Sanker argues…
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