DOUGLAS C. EDMONDS and ARCHONDOULA N. EDMONDS, Appellants,
U.S. BANK NATIONAL ASSOCIATION; JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; James R. Thompson,
Senior Judge. Mark P. Stopa of Stopa Law Firm, Tampa, for
Scot Silverstein of Ira Scot Silverstein, PLLC, Fort
Lauderdale, for Appellee U.S. Bank National Association.
appearance for Appellee JP Morgan Chase Bank, National
nonjury trial, Douglas C. Edmonds and Archondoula N. Edmonds
appeal a final judgment of foreclosure entered in favor of JP
Morgan Chase Bank, National Association (JP Morgan). Because
the appellees failed to establish that notice of default was
given as required by paragraph 22 of the mortgage, which was
a condition precedent to filing suit, we reverse the final
judgment and remand for the trial court to enter an order of
condition precedent issue is dispositive of this appeal.
Thus, we do not address the other issues that the Edmonds
raise. However, we note that the record reflects somewhat of
a procedural quagmire, which is the reason we have listed
both JP Morgan and U.S. Bank National Association (U.S. Bank)
as appellees. See Fla. R. App. P. 9.020(g)(2).
of background, the original lender was Chase Bank USA, N.A.
(Chase). JP Morgan filed the foreclosure complaint and
attached a copy of the note indorsed in blank. Prior to
trial, JP Morgan filed a motion to substitute U.S. Bank as
party plaintiff. At trial, counsel appeared for U.S. Bank,
and the trial court asked if an order on the motion to
substitute had ever been entered. The parties asserted that
an order had been entered, but U.S. Bank's counsel could
not find it in the file. Our record does not contain an order
on the motion to substitute, and the trial court docket does
not reflect that the trial court ever ruled on the motion.
The final judgment identifies JP Morgan as the plaintiff and
makes no mention of U.S. Bank. The Edmonds' notice of
appeal identifies U.S. Bank as the plaintiff (now appellee),
but their initial brief identifies JP Morgan as the appellee.
The style of the answer brief lists JP Morgan as the
appellee, but counsel specifies that the brief is filed on
behalf of U.S. Bank. For ease of reference, we refer to the
appellees as the Plaintiff unless otherwise required by the
this background in mind, we turn to the issue of the notice
of default. Paragraph 22 of the mortgage requires, among
other things, that the lender give the borrowers notice of
default and an opportunity to cure the default prior to
acceleration of the debt. Paragraph 15 specifies that notices
to the borrowers shall be deemed to have been given when they
are mailed by first class mail or when actually delivered to
the borrowers' notice address. In its complaint, JP
Morgan alleged that it complied with all conditions
precedent. In their answer, the Edmonds denied that JP Morgan
gave the required notice of the alleged default and an
opportunity to cure.
trial, Vonterro White testified as a default specialist for
Fay Servicing, LLC, the servicer for U.S. Bank. He
acknowledged that another company had been the prior servicer
for the loan. Among the documents introduced into evidence
over the Edmonds' objection were four default letters
dated January of 2014, identifying JP Morgan as the entity
giving notice of default. A "welcome letter" was
also introduced into evidence, reflecting that Fay Servicing
became the servicer in August of 2014, several months after
the date of the default letters and after JP Morgan had filed
suit. The Plaintiff did not produce any return receipts, a
mailing log, or any documentary evidence to show that the
default letters were in fact mailed or delivered.
questioned about one of the default letters White testified,
over objection, that he knew the letter was mailed because it
was addressed to the borrowers at the property address. He
added that it "is the business practice to send letters
on loans that are delinquent and these letters are sent every
month." However, he admitted that he had never worked
for Chase or JP Morgan. At the conclusion of this testimony
the defense again objected, challenging both the testimony
and the admission of the default letters into evidence.
Defense counsel argued that White's testimony was as to
Fay Servicing's practices and procedures rather than
Chase's or JP Morgan's and reiterated that White had
not worked for Chase or JP Morgan. The trial court overruled
conclusion of the Plaintiff's case, the defense moved for
an involuntary dismissal. The defense contended, among other
things, that the Plaintiff failed to prove the default
letters were mailed. The trial court denied the motion and
entered a final judgment of foreclosure.
Edmonds again argue, and we agree, that the Plaintiff failed
to prove that it gave the required notice under the mortgage
because it did not show that the default letters were mailed
or actually delivered; thus, the Plaintiff failed to
establish a condition precedent to suit. Although the letters
were admitted into evidence, the fact that they were drafted
is insufficient by itself to show that they were mailed.
See Allen v. Wilmington Trust, N.A., No. 2D15-2976,
slip op. at 3 (Fla. 2d DCA Mar. 24, 2017); see also Burt
v. Hudson & Keyse, LLC, 138 So.3d 1193, 1195 (Fla.
5th DCA 2014) (recognizing that the plaintiff had produced a
letter but had offered no proof that it was mailed). A
company's routine business practice may give rise to a
rebuttable presumption of mailing, but "the witness must
have personal knowledge of the company's general practice
in mailing letters." Allen, slip op. at 4;
see also § 90.406, Fla. Stat. (2014);
CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192
(Fla. 5th DCA 2016) (recognizing that the witness had
personal knowledge of the plaintiff company's mailing
testimony reflected no knowledge of JP Morgan's mailing
procedures or practices, and he was never employed by JP
Morgan, the entity that drafted the letters. Rather, he only
testified as to a "normal course of business" of
mailing letters in general. This testimony was insufficient
to prove that the letters were mailed. See Allen,
slip op. at 4 (determining that testimony was insufficient to
establish routine business practice of mailing letters when
the witness was never employed by or had personal knowledge
of the mailing practices of the predecessor servicer that
drafted the letter at issue). Thus, the failure to prove that
the default letters were mailed or actually delivered and
that the notice under paragraph 22 was given requires that ...