ISAIAH L. SPENCER and SHATIKA L. SPENCER, Appellants,
DITECH FINANCIAL, LLC; CITIBANK, NATIONAL ASSOCIATION successor by merger to CitiBank, FSB; CITY OF TAMPA, FLORIDA; RIVERWALK AT WATERSIDE ISLAND TOWNHOMES HOMEOWNERS ASSOCIATION, INC.; WATERSIDE COMMUNITY ASSOCIATION, INC., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Sandra
Taylor, Senior Judge.
P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of
Lord Scott, PLLC, Tampa, for Appellants.
Jonathan L. Blackmore and John D. Cusick of Phelan, Hallinan,
Diamond & Jones, PLLC, Fort Lauderdale, for Appellee
Ditech Financial, LLC.
appearance for remaining Appellees.
and Shatika Spencer appeal the final judgment of foreclosure
entered against them and in favor of EverHome Mortgage
Company following a bench trial. Ditech Financial, LLC, was
later substituted as party plaintiff for EverHome. We reverse
and remand for the trial court to enter an order of
involuntary dismissal because EverHome, Ditech's
predecessor in interest, failed to establish as a condition
precedent to filing suit that the Spencers were given notice
of default as required by paragraph 22 of the mortgage.
Spencers executed the note and mortgage on March 28, 2003.
Federal National Mortgage Association was the lender.
Paragraph 22 of the mortgage provided that prior to
acceleration, the lender must give the borrower notice and an
opportunity to cure the default. Paragraph 15 provided that
any such notice must be written and "shall be deemed to
have been given to Borrower when mailed by first class mail
or when actually delivered to Borrower's notice address
if sent by other means."
2010, EverHome filed a foreclosure complaint against the
Spencers. EverHome alleged that it was the servicer of the
loan and the holder of the note. EverHome also alleged
generally that all conditions precedent to the acceleration
of the note and mortgage and the filing of the foreclosure
suit had been fulfilled. The Spencers filed an answer denying
that the conditions precedent had been met and an affirmative
defense alleging that EverHome had failed to give them notice
and an opportunity to cure as required.
trial, EverHome admitted a default letter from EverHome to
Mr. Spencer through the testimony of Ms. Knight, an employee
of Ditech. Ms. Knight testified to the general industry
standards and practices followed by servicers such as Ditech
and EverHome to advise borrowers that their loans are in
default. She identified the default letter addressed to Mr.
Spencer and described the process by which the letter was
generated and kept in the ordinary course of business.
addition to the default letter itself, Ms. Knight's
testimony was the only evidence that EverHome provided to
show that the letter had been sent to the Spencers.
Throughout Ms. Knight's testimony, Spencer repeatedly
objected based on hearsay, arguing that Ms. Knight lacked
personal knowledge to testify about EverHome's routine
business practices because she was not an employee of
EverHome. The court overruled Spencer's objections, and
Ms. Knight testified that pursuant to EverHome's
procedure and policy, once a letter is generated it is
mailed. But she explained that her knowledge of these
procedures and policies was based on "training."
And when pressed, she admitted that this "training"
consisted of informally discussing EverHome's policies
and procedures with coworkers who currently worked for Ditech
but had previously worked for EverHome.
Ms. Knight testified as follows: "I have spoken with
EverHome employees who are prior employees of EverHome, as we
are instructed to by our supervisor as part of training
because we are not going to travel every day to Jacksonville
to sit down with someone when we have questions." Ms.
Knight admitted that no such discussions about this loan or
any other loan had taken place prior to 2014, when the
service transfer occurred-years after the default letter,
dated June 17, 2010, had been generated by EverHome. She
further admitted that she had never worked for EverHome, had
never sent default letters on behalf of EverHome, and had not
read EverHome's written policies and procedures from June
2010. Ms. Knight admitted that she was not personally
involved in sending the default letter at issue in this case
and that she did not have any documents other than the letter
itself to show that the letter was sent.
evidence was insufficient to show that the default letter was
actually sent. "The fact that a document is drafted is
insufficient in itself to establish that it was mailed."
Allen v. Wilmington Tr., N.A., 216 So.3d 685, 687-88
(Fla. 2d DCA 2017); see also Edmonds v. U.S. Bank
Nat'l Ass'n, 215 So.3d 628, 630 (Fla. 2d DCA
2017) (citing Allen with approval). Rather,
"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." Allen, 216 So.3d at 688.
regarding a company's routine business practices may
establish a rebuttable presumption that the default letter
was mailed. Id. (citing § 90.406, Fla. Stat.
(2014)). But the witness must have personal knowledge of the
company's general mailing practice-meaning that the
witness must be employed by the entity drafting the letters
and must have firsthand knowledge of the company's
routine practice for mailing letters. See id.;
Edmonds, 215 So.3d at 630; see also
CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192
(Fla. 5th DCA 2016) (holding that there was sufficient
evidence to establish mailing based on routine business
practices where witness testified that she had personally
observed coworkers generate breach letters and deliver them
to the mail room to be collected by the postal service).
Here, Ms. Knight admitted that she was never ...