STEVEN E. SOULE, Appellant,
U.S. BANK NATIONAL ASSOCIATION, as trustee for BNC Mortgage Loan Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Kemba Lewis, Judge.
P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of
Lord Scott, PLLC, Tampa, for Appellant.
S. Ehrlich of Blank Rome LLP, Fort Lauderdale, for Appellee.
OF THE COURT:
motion for rehearing is granted, the prior opinion dated May
2, 2018, is withdrawn, and the attached opinion is issued in
its place. Because full relief has been granted by the
panel's ruling on the motion for rehearing,
Appellant's motion for rehearing en banc is denied as
moot. Appellee's motion to reconsider or strike the
court's order granting appellant's appellate
attorneys' fees is denied.
E. Soule appeals the final judgment of foreclosure entered in
favor of U.S. Bank National Association, as trustee for BNC
Mortgage Loan Trust 2007-1 Mortgage Pass-Through
Certificates, Series 2007-1 (the Bank). While Soule raised a
number of grounds for reversal of the final judgment, we
reject all of his arguments except one relating to the
sufficiency of the evidence to establish that the Bank
complied with paragraph 22 of the mortgage by giving notice
of the default to Soule. On this single basis, we reverse and
remand for entry of an involuntary dismissal of the
November 2013, the Bank filed its foreclosure complaint
against Soule based on his alleged failure to make his March
2011 payment and all subsequent payments. In his answer,
Soule denied that the Bank had complied with all conditions
precedent to bringing the action and alleged as an
affirmative defense the Bank's failure to comply with the
notice provisions of paragraph 22 of the mortgage.
trial, Ocwen employee Nena Kamman testified on behalf of the
Bank. Ocwen was the servicer of Soule's loan at the time
of trial, but Ocwen had taken over servicing of the loan from
Chase, and Chase was the servicer that had prepared and
allegedly mailed the default letter pursuant to paragraph 22
in May of 2011. Kamman testified that she had never worked
trial, Kamman testified that the default letter was part of
the business records that Ocwen received from Chase. She also
testified to the boarding process for new loans that Ocwen
obtained. As part of that testimony, she asserted that Ocwen
would not have boarded a loan if there were any "red
flags" related to the loan. She testified that such a
"red flag" might arise if "there was any
indication that a breach letter hadn't been sent."
But she did not testify to how anyone at Ocwen would know
whether a default letter that was imaged into Chase's
system had or had not been mailed or what information might
be in Chase's file to indicate that a default letter had
not been mailed. She did testify that a default letter would
not have been imaged into Chase's system if it had not
been mailed, but she admitted that she had never been trained
in any of Chase's procedures and she offered no testimony
that would show that she had any personal knowledge of this
alleged imaging procedure.
trial and in this appeal, Soule argued that Kamman's
testimony was insufficient to establish that the default
letter prepared by Chase had actually been mailed. Soule
admitted that Kamman's testimony was sufficient to permit
the Bank to introduce the default letter into evidence;
however, he argued that simply introducing the letter into
evidence was insufficient to show that it was mailed. Relying
on Eig v. Insurance Co. of North America, 447 So.2d
377, 379 (Fla. 3d DCA 1984), Soule argued that the Bank had
to introduce competent, substantial evidence of what
Chase's routine business practices were in order to rely
on those practices to prove conformity therewith. And because
Kamman did not have personal knowledge of Chase's routine
business practices concerning the mailing of default letters,
her testimony could not provide competent, substantial
evidence of those practices. Therefore, he argued, while the
default letter itself was admissible, there was no evidence
to prove that it was mailed and so the Bank's case should
be dismissed. The trial court rejected this argument, as
initially did we.
time of trial and when this case was originally heard at oral
argument, there was no law from this district on the issue of
what foundational testimony was required to prove that a
default letter had been mailed by a prior servicer. However,
we recently issued an opinion addressing this exact issue in
Spencer v. DiTech Financial, LLC, 43
Fla.L.Weekly D720 (Fla. 2d DCA Apr. 4, 2018). In that case,
EverHome was the predecessor servicer to DiTech. Id.
at D721. At the foreclosure trial, Ms. Knight, an employee of
DiTech, testified that EverHome, as the prior servicer, had
prepared and mailed the default letter to Spencer in 2010.
Id. However, the testimony established that Ms.
Knight had never worked for EverHome, had no personal
knowledge of its practices or procedures for preparing and
mailing default letters, had not read EverHome's policies
and procedures for preparing and mailing default letters, and
had never spoken to anyone at EverHome about how this
particular letter had been generated or mailed. Id.
Moreover, the evidence showed that the loan was transferred
to DiTech in 2014-four years after the default letter had
been created and allegedly mailed. Id. In finding
Ms. Knight's testimony insufficient to prove that the
default letter had been mailed, this court explained:
This 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, ...