JOHN ALLEN, a/k/a JOHN T. ALLEN, Appellant,
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.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Nancy K.
Horowitz, Sarasota, for Appellant.
T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for
appearance for remaining Appellees.
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.
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.
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
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
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.
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.
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
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;