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Allen v. Wilmington Trust, N.A.

Florida Court of Appeals, Second District

March 24, 2017

JOHN ALLEN, a/k/a JOHN T. ALLEN, Appellant,
v.
WILMINGTON TRUST, N.A., Successor Trustee to CITIBANK, N.A., as Trustee f/b/o the Registered Holders of Structured Asset Mortgage Investments II Trust 2007-AR6, Mortgage Pass-Through Certificates, Series 2007-AR6; CONSTANCE ALLEN-WILLOUGHBY; and SOUTH GATE COMMUNITY ASSOCIATION, INC., Appellees.

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

         Appeal from the Circuit Court for Sarasota County; Nancy K. Donnellan, Judge.

          Gregg Horowitz, Sarasota, for Appellant.

          Sarah T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for Appellee Citibank.

          No appearance for remaining Appellees.

          SILBERMAN, Judge.

         John Allen seeks review of a final judgment of foreclosure which was entered after a nonjury trial. Allen argues that Wilmington Trust, N.A., failed to prove that it met the condition precedent of giving notice of acceleration. We agree and reverse.

         Paragraph 22 of the mortgage requires that the lender give notice to the borrower prior to acceleration and sets forth several required terms of the notice. Paragraph 15 requires that the notice be written and provides that any such notice "shall be deemed to have been given to Borrower when mailed by first class mail." In his answer to the foreclosure complaint, Allen denied that the Trust met all conditions precedent. He also asserted as an affirmative defense that the Trust failed to meet the condition precedent of giving notice of acceleration.

         At trial, the Trust presented the testimony of Christine Coffron, a case manager with Select Portfolio, the current servicer for the Trust. Coffron testified about the boarding process Select Portfolio used to verify the records of the prior servicer, EMC Mortgage Corporation. Coffron also testified that the records contained a notice of acceleration letter addressed to Allen and dated March 12, 2010. She added that because the letter existed, it had been sent. Further, she stated that the account did not contain anything indicating that the letter was returned as undeliverable and "servicers aren't in the habit of generating letters that they don't send." However, she acknowledged that there were no records reflecting that the letter actually had been mailed and that she did not know EMC's mailing procedures.

         Allen unsuccessfully objected to Coffron's testimony that EMC had mailed Allen the notice letter. Allen asserted that the Trust had not established a foundation for the testimony. At the close of the evidence, Allen argued that the Trust had not proven that it met the condition precedent of giving notice of acceleration. The trial court disagreed, concluding that Coffron's testimony describing the boarding process was sufficient to establish that the notice letter was mailed.

         The court's reliance on the boarding process to prove that the notice letter was mailed is misplaced. Generally, the boarding process is relevant to the admission of the prior servicer's records under the business records exception to the hearsay rule. See Michel v. Bank of N.Y. Mellon, 191 So.3d 981, 983 (Fla. 2d DCA 2016). That is, testimony by the current servicer adequately describing the boarding process is sufficient to support the admission of the prior servicer's records under the business records exception. Id. Thus, Coffron's testimony regarding Select Portfolio's boarding process was sufficient to support the admission of EMC's documents pertaining to Allen's account, including the notice letter. See id.

         That said, the admissibility of the notice letter is not at issue in this case. At issue is whether the evidence was sufficient to establish that the Trust satisfied the condition precedent of giving notice of acceleration by mailing the notice letter. We conclude that neither the boarded documents nor Coffron's testimony established mailing.

         The notice letter does not contain any proof that it was mailed. It is dated, but that simply establishes when it was drafted. The fact that a document is drafted is insufficient in itself to establish that it was mailed. See Burt v. Hudson & Keyse, LLC, 138 So.3d 1193, 1195 (Fla. 5th DCA 2014). Instead, mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt. Id.

         As for the other boarded documents, Coffron admitted that they did not include any evidence that the notice letter had been mailed, such as a return receipt or mailing log. And the fact that the boarded documents did not contain any records indicating that the notice letter was returned as undeliverable does not establish that the letter was mailed; ...


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