DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee, on behalf of the holders of the J.P.Morgan Mortgage Acquisition Trust 2007-CH1 Asset Backed Pass-Through Certificates, Series 2007-CH1, Appellant,
JAMES SHEARD a/k/a JAMES BELL SHEARD; CHASE BANK USA, NATIONAL ASSOCIATION f/k/a CHASE MANHATTAN BANK, USA N.A.; CITIBANK (SOUTH DAKOTA) NA; UNITED STATES OF AMERICA, DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE; UNKNOWN TENANT #1; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER AND AGAINST THE NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Thomas S. Reese,
T. Kohn and Benjamin B. Brown of Quarles & Brady, LLP,
Naples, for Appellant.
Foxall of Roy W. Foxall, P.A., Fort Myers for Appellee James
Sheard a/k/a James Bell Sheard.
appearance for remaining Appellees.
Bank National Trust Company (the Trust) timely appeals the
order dismissing its foreclosure action against James Sheard.
The court dismissed the suit based on Sheard's claim at
trial that he did not receive the default notice letter
because the Trust sent it to the wrong address. Regardless of
whether it was appropriate for the trial court to consider
Sheard's defense in the first place, an issue we do not
need to address, the Trust showed substantial compliance with
the notice requirements. Accordingly, we reverse and remand
for the trial court to enter a final judgment of foreclosure
in favor of the Trust.
record shows that Sheard admitted in response to a request
for admissions that the Trust had sent the notice letter and
that he had indeed received it. These admissions were never
withdrawn or amended. Sheard also failed to provide a witness
and exhibit list prior to trial, even though the Trust had
sent him a request for a pretrial meeting to exchange
exhibits to be used at trial. Despite these circumstances,
the main issue at trial became Sheard's defense that he
had never received the notice letter because it was sent to
the property address instead of his secondary mailing
address. The Trust objected to Sheard presenting this defense
because he never provided a witness and exhibit list, which
would have indicated that Sheard's receipt of the letter
was at issue. Perplexingly, the Trust neglected to bring
Sheard's admissions on this exact point to the
court's attention during trial. Over the Trust's
objection, Sheard introduced testimony and documents into
evidence in support of his defense. The court ultimately
granted Sheard's motion to dismiss based on a finding
that the Trust had failed to comply with a condition
precedent because the notice of default letter was mailed to
the wrong address. On rehearing, the Trust argued that it was
unfairly surprised by Sheard's defense in part because of
Sheard's admissions. The motion for rehearing was denied.
appeal, the Trust argues that, for multiple reasons, it was
improper for the trial court to allow any evidence on the
issue of whether the default letter had been mailed or
received. We decline to address this issue because,
regardless of whether the defense was appropriately
considered, we agree with the Trust that the evidence
presented did not support involuntary dismissal. Rather, it
showed that the Trust had substantially complied with the
mortgage is interpreted and applied like any other contract,
and, "[i]n Florida, a party's adherence to
contractual conditions precedent is evaluated for substantial
compliance or substantial performance." Green Tree
Servicing, LLC v. Milam, 177 So.3d 7, 13 (Fla. 2d DCA
2015). Paragraph 15 of the mortgage provides that "[a]ny
notice to Borrower in connection with this Security
Instrument 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"
and "[t]he notice address shall be the Property Address
unless Borrower has designated a substitute notice address by
notice to Lender." Here, the evidence showed that the
Trust had sent the notice letter to the property address.
Though there was evidence that Sheard had at one point
designated a substitute address, the servicer's records
indicated that it was no longer needed. Specifically, the
Trust's witness, a case manager for the current servicer,
stated that the substitute address used by the prior servicer
was no longer necessary and so correspondence was sent to the
property address pursuant to paragraph 15 of the mortgage.
evidence shows that the servicer reasonably relied on its
records indicating that the property address was the
appropriate notice address. Moreover, the property address
was a valid address for Sheard and next door to his secondary
address. Under these circumstances, the servicer
substantially complied with the notice requirements set forth
in the mortgage.
we reverse the circuit court's order dismissing the
Trust's foreclosure action against Sheard. And because
the Trust otherwise established its right to foreclose, we
remand for the trial court to enter a final judgment of
foreclosure in the Trust's favor. See Hawthorne,
197 So.3d at 1241.
and remanded ...