CATHERINE M. RIVERA a/k/a CATHERINE RIVERA, Appellant,
THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK as successor in interest to JP Morgan Chase Bank, N.A., as Trustee for Structured Asset Mortgage Investments II Trust 2006-AR6 Mortgage Pass-Through Certificates Series 2006-AR6; ANTONIO RIVERA-JARAMILLO a/k/a MARCO A. RIVERA; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., acting solely as nominee for Countrywide Bank, N.A.; UNITED STATES OF AMERICA, DEPARTMENT OF TREASURY; and BALLANTRAE HOMEOWNERS ASSOCIATION, INC., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Kemba Johnson Lewis,
P. Stopa of Stopa Law Firm, LLC, Tampa (withdrew after
briefing); Latasha Scott of Lord Scott, PLLC, Tampa (withdrew
after briefing); Richard J. Mockler of Stay In My Home, P.A.,
St. Petersburg (withdrew after briefing); Brendan R. Riley of
Stewart & Riley, New Port Richey (substituted as counsel
of record), for Appellant.
M. Wallace of Akerman LLP, Tallahassee; William P. Heller of
Akerman LLP, Fort Lauderdale; and Brandon G. Forgione of
Akerman LLP, West Palm Beach, for Appellee The Bank of New
appearance for remaining Appellees.
M. Rivera appeals a final judgment of foreclosure in favor of
The Bank of New York Mellon f/k/a The Bank of New York as
successor in interest to JPMorgan Chase Bank, N.A., as
Trustee for Structured Asset Mortgage Investments II Trust
2006-AR6 Mortgage Pass-Through Certificates Series 2006-AR6
("the Bank"). The final judgment was entered after
a summary judgment hearing, and Rivera contends that summary
judgment was improper because genuine issues of material fact
remain on two subjects. We reject without further comment
Rivera's argument that there was an issue of material
fact regarding the Bank's standing at the time of
judgment. But because a genuine issue of material fact
remains as to whether a default letter was mailed, we reverse
the final judgment and remand for further proceedings.
support of its motion for summary judgment, the Bank
submitted the affidavit of Edward Hyne, a litigation
resolution analyst for Nationstar Mortgage LLC. Hyne asserted
that Nationstar was the loan servicer for the Bank, and
attachments to the affidavit include the default letter and a
log that was a business record of Nationstar. The log
reflects that on November 2, 2015, "DEMAND LETTER SENT
BY WALZ." With respect to the log, Hyne asserted that it
is "a true and correct copy of Nationstar's business
records showing the letter was mailed by regular and
certified first class mail. This information was transmitted
by a person with personal knowledge of the mailing at the
time the mailing occurred."
summary judgment hearing, the Bank's counsel acknowledged
that Walz was a third-party vendor. Nothing in Hyne's
affidavit indicates that he was familiar with Walz's
regular business practice regarding mailing or that Hyne had
personal knowledge that the default letters were mailed.
Although his affidavit states that "a person with
personal knowledge of the mailing" transmitted the
information, he did not assert that he was that person.
contends that the Bank failed to meet its summary judgment
burden to prove that it complied with the condition precedent
of giving notice of default under paragraph 22 of the
mortgage. Specifically, she contends that the Bank failed to
prove that a default letter was mailed as required by
paragraph 15 of the mortgage and that a genuine issue of
material fact remains. Under paragraph 15, notice is
"deemed to have been given to Borrower when mailed by
first class mail or when actually delivered."
review of a summary judgment is de novo. Johnson v.
Deutsche Bank Nat'l Tr. Co. Ams., 248 So.3d 1205,
1207 (Fla. 2d DCA 2018). To prevail on summary judgment, the
moving party must conclusively show "that there are no
genuine issues of material fact and that it is entitled to
judgment as a matter of law." Id. at 1208
(quoting Coral Wood Page, Inc. v. GRE Coral Wood,
LP, 71 So.3d 251, 253 (Fla. 2d DCA 2011)). "If the
record reflects the existence of any genuine issue of
material fact or the possibility of any issue, or if the
record raises even the slightest doubt that an issue might
exist, summary judgment is improper." Id.
(quoting Atria Grp., LLC v. One Progress Plaza, II,
LLC, 170 So.3d 884, 886 (Fla. 2d DCA 2015)). Affidavits
in support of or opposition to summary judgment must be made
on personal knowledge and contain facts that would be
admissible in evidence. Fla. R. Civ. P. 1.510(e).
notice requirement in paragraph 22 of the mortgage is a
condition precedent to filing a foreclosure suit. Kamin
v. Fed. Nat'l Mortg. Ass'n, 230 So.3d 546, 548
(Fla. 2d DCA 2017); Green Tree Serv., LLC v. Milam,
177 So.3d 7, 12 (Fla. 2d DCA 2015). In her answer, Rivera
denied that the Bank complied with paragraphs 15 and 22 and
alleged that it failed to give notice of default. Rivera
submitted an affidavit stating that she never received any
notice of default. Under paragraph 15, notice is "deemed
to have been given to Borrower when mailed by first class
mail or when actually delivered." To be entitled to
summary judgment, the Bank must conclusively show that a
default letter was mailed or delivered in compliance with
paragraphs 15 and 22. See Kamin, 230 So.3d at 549.
default letter alone attached to a summary judgment affidavit
is insufficient to prove that the letter was mailed. See
id. To prove mailing, a party must "produc[e]
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.,
N.A., 216 So.3d 685, 688 (Fla. 2d DCA 2017). To use
routine business practice to prove mailing, "the witness
must have personal knowledge of the company's general
practice in mailing letters." Id.; see also
Edmonds v. U.S. Bank Nat'l Ass'n, 215 So.3d 628,
630 (Fla. 2d DCA 2017).
course, Nationstar's business records can be admissible
in evidence under the business records exception to the
hearsay rule. See § 90.803(6)(a), Fla. Stat.
(2018). But if that "business record contains a hearsay
statement, the admissibility of the record depends on whether
the hearsay statement in the record would itself be
admissible under some exception to the hearsay rule."
Knight v. GTE Fed. Credit Union, 43 Fla.L.Weekly
D348, D349 (Fla. 2d DCA Feb. 14, 2018) (quoting Van
Zant v. State, 372 So.2d 502, 503 (Fla. 1st DCA 1979)).
Hearsay information does not become admissible "merely
because it has been recorded in the regular course of
business." Id. (quoting Van Zant, 372
So.2d at 503). Although a loan servicer's representative
need not "have personal knowledge of the documents being