FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, Lisa Davidson,
William L. Grimsley, N. Mark New, II, Kimberly Held Israel
and Gabriel M. Hartsell, of McGlinchey Stafford,
Jacksonville, for Appellant.
Michael A. Saracco, of Saracco Law, Cocoa, for Appellees.
Bank National Association (Bank) appeals the involuntary
dismissal of its foreclosure complaint against Courtney and
Carol Roberts (Borrowers), after the trial court found that
Bank failed to produce competent, substantial evidence
showing it complied with the condition precedent to
acceleration and foreclosure in paragraph 22 of the mortgage.
Paragraph 22 required Bank to send Borrowers a notice
informing them that the loan was in default at least thirty
days before accelerating the loan. Because Borrowers'
affirmative defense that the acceleration letters were not
mailed was waived, and Bank offered competent, substantial
evidence that the acceleration letters were mailed, we
August 23, 2002, Borrowers executed a promissory note in the
amount of $509, 900 in favor of Fidelity Federal Bank &
Trust to fund construction of a new home. The
note was secured by a mortgage on the property in favor of
Fidelity Federal Bank & Trust. Borrowers later obtained
an additional $284, 100 in loans from National City Mortgage
Co., after which the parties agreed to a mortgage
modification agreement increasing the principal due on the
note and mortgage to $794, 000.
2009, Borrowers defaulted on the loan. As a result, on
January 7, 2010, Bank sent Borrowers two acceleration
letters stating that the loan was in default
because Borrowers had missed the payment due on September 1,
2009, and all subsequent payments. The letters gave Borrowers
until February 6, 2010, to cure the default. When Borrowers
failed to cure the default, Bank filed its complaint to
foreclose the mortgage.
their amended answer, Borrowers generally denied all of the
allegations in the foreclosure complaint and specifically
denied that Bank complied with the conditions precedent to
accelerate the loan. They raised twenty-seven affirmative
defenses, the fourth of which stated:
As a fourth affirmative defense, defendant states that
plaintiffs failed to perform conditions precedent to the
initiation of this action and or for acceleration of payment
allegedly due. As a result, defendant has been denied a good
faith opportunity, pursuant to the mortgage and the servicing
obligations of the plaintiff to avoid acceleration and this
foreclosure. More specifically, Plaintiff has failed to
perform conditions precedent by failing to comply with
paragraph 22 of the subject mortgage and failing to comply
with the notice requirements in the mortgage.
Bank sought to obtain more information about Borrowers'
fourth affirmative defense through an interrogatory that
asked Borrowers to "state all facts that support [y]our
fourth affirmative defense that there has been a failure of
conditions precedent." Borrowers responded to the
interrogatory by stating under oath, "[t]he note was
cancelled and no conditions precedent exist." Another
interrogatory requested the factual basis for all of the
twenty-seven affirmative defenses. Borrowers responded with
only the short notation, "[p]aid cancelled note."
argues that Borrowers waived their fourth affirmative defense
with these interrogatory responses. "A litigant may
abandon any defense he elects to abandon, and the defendant
in a civil suit may waive any right he chooses, generally
simply by never asserting it." State v. Fla.
Nat'l Props, Inc, 338 So.2d 13, 19 (Fla. 1976) (Hatchett,
J, concurring, in part, and dissenting, in part). For
instance, affirmative defenses can be waived if they are not
listed in the pretrial order or through a statement to the
jury during closing arguments. Cooke v. Ins. Co. of N.
Am., 652 So.2d 1154, 1156 (Fla. 2d DCA 1995);
Vendola v. S. Bell Tel. & Tel. Co., 474 So.2d
275, 279-80 (Fla. 4th DCA 1985). Moreover, while there is no
Florida case law on waiver of defenses through interrogatory
responses, other states that have addressed the issue have
found that interrogatory responses made under oath are
binding and can waive a defense. See Young v. Guild,
7 So.3d 251, 261-62 (Miss. 2009) ("Young's denial in
her discovery response was binding on her; she waived her
right to an apportionment instruction."); Coho Res.,
Inc. v. McCarthy, 829 So.2d 1, 24 (Miss. 2002) (holding
that failure to identify other tortfeasors in response to
interrogatory requesting identity of any parties defendant
believed caused the accident waived right to apportion fault
to another tortfeasor); Allstate Indem. Co. v.
Brown, 696 N.E.2d 92, 97 (Ind.Ct.App. 1998) (finding
waiver of issue on "consent to sue" clause in
insurance contract because insurer's "complaints and
its responses to interrogatories gave [plaintiff] no reason
to believe that he had failed to comply with the policy
terms" (citing Indiana Ins. Co. v. Noble, 265
N.E.2d 419, 435 (Ind. App. 1970))). We see no reason to hold
differently here and conclude Borrowers' assertion that
"no conditions precedent exist" in their answer to
Bank's interrogatory waived their fourth affirmative
defense. Thus, the trial court should not have considered it.
notwithstanding, Bank presented competent, substantial
evidence at trial that it complied with paragraph 22 of the
mortgage. Paragraph 22 requires Bank to send Borrowers a
written acceleration letter informing them "that the
loan is in default and the debt is being accelerated, how to
cure the default by paying a specified amount, providing at
least thirty days within which to cure, and other important
information." Figueroa v. Fed. Nat'l Mortg.
Ass'n, 180 So.3d 1110, 1116 (Fla. 5th DCA 2015).
Under paragraph 15 of the mortgage, the acceleration letter
must be sent by first-class mail or be actually delivered to
Borrowers at the property address or, if designated, their
notice address. Id. A rebuttable presumption of
receipt arises if it is sent by first-class mail. See
Progressive Express Ins. Co. v. Camillo, 80 So.3d 394,
402 (Fla. 4th DCA 2012) ("Proof of mailing of a document
to the correct address creates a presumption that the item
mailed was, in fact, received.").
addition to admitting the acceleration letter into evidence,
there must also be competent, substantial evidence that the
acceleration letters were actually sent to Borrowers. See
Ensler v. Aurora Loan Servs., LLC,178 So.3d 95, 97 (Fla
4th DCA 2015). "[M]ailing 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 v. Wilmington Tr.,