Mace v. M&T Bank

• Decision Date: 25 March 2020
• Docket Number: Case No. 2D16-3381
• Citation: 292 So.3d 1215
• Parties: Kenneth MACE and Janice Mace, Appellants, v. M&T BANK, Appellee.
• Court: Florida District Court of Appeals

292 So.3d 1215

Kenneth MACE and Janice Mace, Appellants,

v.M&T BANK, Appellee.

Case No. 2D16-3381

District Court of Appeal of Florida, Second District.

Opinion filed March 25, 2020.

Mark P. Stopa of Stopa Law Firm, Tampa (withdrew after briefing); Latasha C. Scott of Lord Scott, PLLC, Tampa (substituted as counsel of record), for Appellants.

Charles P. Gufford of McCalla Raymer Liebert Pierce, LLC, Orlando, for Appellee.

SALARIO, Judge.

Kenneth and Janice Mace appeal from a final judgment of foreclosure in favor of M&T Bank.We reverse because the Bank failed to introduce legally sufficient evidence that it mailed the Maces a default notice before filing suit for foreclosure as required by paragraphs fifteen and twenty-two of the mortgage.We remand for the entry of an order of involuntary dismissal.

I.

This is a more-or-less typical residential foreclosure case alleging that borrowers under a mortgage loan defaulted on their obligation to make monthly payments of principal and interest on a note secured by a mortgage.Paragraph twenty-two of the mortgage contains a standard provision that requires the lender (here, the Bank) to give the borrowers (here, the Maces) thirty days' written notice of the default before accelerating the balance due on the loan.¹Paragraph fifteen of the mortgage requires that any notice to the borrowers be in writing and be deemed given when mailed by first-class mail or actually delivered to the borrower.A lender's obligation to give notice of default in accord with these provisions is a condition precedent to its acceleration of the debt due on the underlying note and commencement of a foreclosure suit.SeeSpencer v. Ditech Fin., LLC, 242 So. 3d 1189, 1191(Fla. 2d DCA2018);Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 12(Fla. 2d DCA2015).

The Bank's complaint alleged compliance with all conditions precedent.The Maces' answer denied that allegation and asserted that the Bank had failed to provide them with a pre-acceleration default notice.Thus, it became the Bank's burden to prove that it had given the Maces notice of default in accord with paragraphs fifteen and twenty-two of the mortgage.See, e.g., Spencer, 242 So. 3d at 1191;Allen v. Wilmington Tr., N.A., 216 So. 3d 685, 688(Fla. 2d DCA2017).

The case proceeded to a nonjury trial.The Bank's sole witness was Shelly Andreas, an assistant vice president and operations manager at the Bank.Through Ms. Andreas, the Bank introduced a default letter addressed to the Maces dated February 13, 2015.The Bank also introduced a copy of a certified mail card addressed to the Maces and bearing the return address of an entity called McCalla Raymer, LLC.When asked about whether there was any evidence that a third party was used to mail the February 13, 2015 letter to the Maces, Ms. Andreas pointed to the certified mail card and said she was "considering McCalla Raymer a third party, as an agent for" the Bank.The certified mail card was admitted as a separate exhibit from the default letter.It was not dated or signed.There were no markings or other indications on the document suggesting that it was filled out for purposes of mailing the default letter or, if it was, that it had in fact been mailed to the Maces.The Bank did not seek to admit any other documents that might have borne on the questions whether and when the default letter was mailed.

Ms. Andreas testified that she had personal knowledge that the default letter was sent because she was "personally involved" in sending the letter.Ms. Andreas did not, however, actually mail the letter or have any firsthand knowledge that the letter was mailed.As it turned out, the personal involvement upon which Ms. Andreas's personal knowledge was based consisted of (1) conversations she had with people at McCalla Raymer about the default letter and (2) records she had reviewed that, according to Ms. Andreas, reflected that the letter had been sent.Ms. Andreas did not describe those records, and the Bank did not have them admitted into evidence.The Maces repeatedly objected to Ms. Andreas's testimony, asserting that Ms. Andreas lacked personal knowledge of the mailing of the letter and that her testimony about it was based on hearsay—namely what she heard from McCalla Raymer and what she saw in other documents.The trial court overruled the objections.

Ms. Andreas testified that she was "familiar with the normal business operation and practices of [the Bank] as it pertains to servicing loans and record-keeping."She further testified that she had received "training" regarding sending out default notices, which consisted of "interactions" with the department responsible for sending out breach letters and "interactions with my counsel's office" regarding its process for sending breach letters.Beyond this, however, Ms. Andreas did not testify that the Bank had a routine or ordinary practice for sending default letters, what the practice was, or whether she had personal knowledge of it.To the extent the Bank's process is to use a third party such as a vendor, she did not testify what the third party's regular practices or policies were either.

At the close of the Bank's case, the Maces moved for an involuntary dismissal.They argued, among other things, that the Bank failed to adduce legally sufficient evidence that the default notice admitted into evidence was mailed by first class mail to the Maces as required by paragraph fifteen of the mortgage.²The trial court denied the motion.After hearing the defense case—during which Mr. Mace testified that he never received the default notice—the trial court entered a final judgment of foreclosure in favor of the Bank.This is the Maces' timely appeal.

II.

On appeal, the Maces argue that the Bank's proof that it mailed them a default letter was legally insufficient because the only evidence it introduced came from a witness without personal knowledge and was inadmissible hearsay.We may review the sufficiency of the evidence in a civil, nonjury trial without the issue being preserved with a motion in the trial court.SeeFla. R. Civ. P. 1.530(e).Our review is de novo.SeeNorman v. Padgett, 125 So. 3d 977, 978(Fla. 4th DCA2013).

Legally sufficient evidence is generally understood to be equivalent to competent substantial evidence.See, e.g., N.J. v. Dep't of Children & Families, 143 So. 3d 1109, 1112(Fla. 2d DCA2014)("Competent substantial evidence is tantamount to legally sufficient evidence."(quotingS.T. v. Dep't of Children & Family Servs., 87 So. 3d 827, 833(Fla. 2d DCA2012) ));Tsavaris v. NCNB Nat'l Bank of Fla., 497 So. 2d 1338, 1339(Fla. 2d DCA1986)(equating legal sufficiency to competent substantial evidence (quotingTibbs v. State, 397 So. 2d 1120, 1123(Fla.1981) )).We have explained that evidence is competent when it is "admissibl[e] under legal rules of evidence" and is substantial when it is "material" and has a "definite probative value."Savage v. State, 120 So. 3d 619, 621(Fla. 2d DCA2013)(quotingDunn v. State, 454 So. 2d 641, 649 n.11(Fla. 5th DCA1984)(Cowart, J., concurring specially));see alsoLonergan v. Estate of Budahazi, 669 So. 2d 1062, 1064(Fla. 5th DCA1988)(same).

Applying these standards to this case, we begin by observing that it is now settled that the mere fact that a foreclosure plaintiff drafted a paragraph twenty-two default letter is not enough to allow a trial court to infer that the letter was mailed.Spencer, 242 So. 3d at 1191;see alsoEdmonds v. U.S. Bank Nat'l Ass'n, 215 So. 3d 628, 630(Fla. 2d DCA2017)("Although the letters were admitted into evidence, the fact that they were drafted is insufficient by itself to show that they were mailed.").The reason is plain enough: One cannot conclude from the fact that someone wrote a letter that they also mailed it, at least not without engaging in speculation about what happened.SeeAllen, 216 So. 3d at 688.Thus, we have held that "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."Id.;see alsoSpencer, 242 So. 3d at 1191.

Our statements that these types of "additional evidence" can establish that a default letter was mailed point to three broad categories of proof that, individually or in combination, may be capable of doing the job in any given case.SeeAllen, 216 So. 3d at 688.One is the testimony of a witness or witnesses with personal knowledge of relevant facts, perhaps someone involved with the mailing of the letter.Seeid.A second is evidence that the organization responsible for mailing the letter had a routine practice with respect to mailing letters of that type from which a court can infer that the routine practice was followed and the letter was mailed.See, e.g., Thorlton v. Nationstar Mortg., LLC, 257 So. 3d 596, 601-02(Fla. 2d DCA2018);CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192(Fla. 5th DCA2016).And a third is properly admitted records—such as a return receipt or a log entry generated upon mailing—that bear on the question of mailing.SeeEdmonds, 215 So. 3d at 630(explaining that plaintiff failed to "produce any return receipts, a mailing log, or any documentary evidence" bearing on mailing);cf.Knight v. GTE Fed. Credit Union, 43 Fla. L. Weekly D348(Fla. 2d DCAFeb. 14, 2018)(describing plaintiff's attempt to prove mailing with a mailing log and holding that the log was inadmissible), review stayed, SC18-790(Fla.May 29, 2018).None of these kinds of evidence are present in this case.

First, the Bank did not present any testimony by a witness with personal knowledge that the letter was mailed.Although Ms. Andreas said that she was personally involved in the mailing of the letter, it quickly became clear that (1)she had no personal knowledge whatsoever of whether the default notice was mailed and (2) any information she did have came from conversations s...