VITALIY
v.
WELLS FARGO BANK
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A mortgagee must prove actual mailing of the required default notice letter, not merely preparation of the letter.
[1] A mortgagee asserting compliance with a contractual notice of default requirement must prove actual mailing of the notice, not merely that the notice was prepared or addr…
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Join FLexlaw to unlock all legal intelligence“At best, Appellee's evidence proved only that Appellee prepared a default letter addressed to Appellant; however, there was no proof that the default letter was actually mailed.”
Court's analysis of the evidence presented at trial
Wells Fargo initiated foreclosure against Rush Vitaliy. The mortgage required notice of default under paragraph 22, which Vitaliy alleged was never pr…
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PER CURIAM.
We reverse the final judgment of foreclosure entered in favor of Appellee, Wells
Fargo Bank, N.A., against Appellant, Rush Vitaliy. In his answer to Appellee’s foreclosure complaint, Appellant alleged that Appellee failed to provide him with the notice of default letter required by paragraph 22 of the mortgage. At trial, Appellee attempted to prove compliance with paragraph 22; however, the court sustained Appellant’s objection that the proffered evidence was hearsay. At the conclusion of Appellee’s case, Appellant moved for an involuntary dismissal based on Appellee’s failure to prove that it actually mailed a default letter to Appellant. The trial court denied Appellant’s motion and entered final judgment in favor of Appellee.
At best, Appellee’s evidence proved only that Appellee prepared a default letter addressed to Appellant; however, there was no proof that the default letter was actually mailed. Thus, Appellee failed to prove that it complied with paragraph 22 of the mortgage.
See Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134, 1137 (Fla. 5th DCA 2017).
Accordingly, the trial court erred by denying Appellant’s motion for involuntary dismissal and for entering judgment in favor of Appellee. We reverse the final judgment and remand to the trial court with instructions to enter an order involuntarily dismissing the case.
REVERSED AND REMANDED.
COHEN, C.J., EDWARDS and GROSSHANS, JJ., concur.