Alessio v. Ocwen Loan Servicing, LLC, 4D18-793

• Decision Date: 01 May 2019
• Docket Number: No. 4D18-793,4D18-793
• Citation: 273 So.3d 3
• Parties: Gino ALESSIO, a/k/a Gino Davide Alessio, and Fernanda Alessio, a/k/a Fernanda Lalia Cury, Appellants, v. OCWEN LOAN SERVICING, LLC, Appellee.
• Court: Florida District Court of Appeals

273 So.3d 3

Gino ALESSIO, a/k/a Gino Davide Alessio, and Fernanda Alessio, a/k/a Fernanda Lalia Cury, Appellants,

v.OCWEN LOAN SERVICING, LLC, Appellee.

No. 4D18-793

District Court of Appeal of Florida, Fourth District.

[May 1, 2019]

Kendrick Almaguer and Natalie M. Eusebe of The Ticktin Law Group, Deerfield Beach, for appellants.

James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables, for appellee.

Warner, J. Appellants challenge a final judgment of foreclosure. They raise several issues, one of which requires reversal. While the trial court concluded that through witness testimony appellee had established its compliance with the provisions of the mortgage that required notice of default to have been mailed to the appellant borrowers prior to acceleration, we disagree that the proof was adequate. In Torres v. Deutsche Bank National Trust Co. , 256 So.3d 903, 905 (Fla. 4th DCA 2018), we explained that where witness testimony is used to prove mailing, the witness must have personal knowledge of the business's general practice in mailing letters. As there was no testimony with respect to personal knowledge of the practices of the entity which allegedly mailed the letter, the evidence was insufficient to prove that appellee complied with the condition precedent. We reverse.

Appellants executed a note and mortgage to IndyMac Bank, F.S.B., in 2007. In 2009, OneWest Bank, F.S.B., brought an action to foreclose the mortgage, alleging that it was the holder of the note and servicer for the owner of the note, Federal National Mortgage Association. Attached to the complaint was a copy of the promissory note with a blank endorsement from IndyMac. Appellants answered with various affirmative defenses, including OneWest's failure to send a notice of default pursuant to Paragraph 22 of the mortgage, a condition precedent to foreclosure. During the proceedings, Ocwen was substituted as the party plaintiff for OneWest, as it had become the servicer of the loan.

The case proceeded to trial. A senior loan analyst for Ocwen testified. Prior to her employment with Ocwen, which began in 2014, she was employed with OneWest as a default litigation specialist from 2012-2013. The analyst described Ocwen's boarding process, and through her testimony, the note, mortgage, and assignments of mortgage (from IndyMac to One West, and then to Ocwen) were admitted, as well as the loan payment history.

With respect to the notice of default, required by Paragraph 22 of the mortgage, appellee sought to admit the notice that was purportedly sent to the appellants in July 2009. The notice stated that it was from IndyMac Mortgage Services, a division of OneWest. The analyst identified the notice as being maintained in Ocwen's system of records. The trial court admitted the notice as a business record of Ocwen, over the objection of appellants. Appellee's witness also testified that there was no indication from Ocwen's records that the letter was ever returned. During cross-examination, the analyst testified that IndyMac Mortgage Services was a division of OneWest Bank. As to the notice, she testified that she did not have any personal involvement in sending default letters, but OneWest did not utilize a vendor or third party to send out its letters. She had not observed the sending of breach letters by IndyMac Bank, nor was she ever employed by it or had access to its policies and procedures. Ocwen was not involved in sending the default letter to appellants. Appellee's witness did testify that as part of her job description at OneWest, she was trained on how to determine whether a default letter was actually mailed. However, she never described the mail procedure at either IndyMac, OneWest, or Ocwen.

Appellants moved for involuntary dismissal at the end of appellee's case on two grounds, including the lack of evidence that the default letter was actually mailed. The letter itself did not contain any proof that it was mailed, and there was no evidence to establish the regular business practices of IndyMac. Although the letter was boarded, there was no return receipt or mail log showing that it was mailed. The witness did not have personal knowledge of IndyMac's mailing practices; thus, there was no evidence that the lender complied with the condition precedent of providing notice of the loan's acceleration under Paragraph 22 of the mortgage.

Counsel for Ocwen responded that the witness testified that she was previously employed with OneWest, was familiar with its mailing procedures, and knew how to determine whether documents were mailed by OneWest based on its business records. Based on the witness's review, the notice was sent. The letter was sent by IndyMac, which was a division of OneWest. The court noted that the letter identified IndyMac as a division of OneWest, and the analyst used to be employed with OneWest and understood the nature of its mailing procedures. It therefore denied the motion for involuntary dismissal.

Appellant Gino Alessio testified that he had never received the default letter. Following closing arguments, the court found that appellee had proved its case and entered final judgment of foreclosure. This appeal followed.

This Court reviews de novo the denial of a motion for involuntary dismissal. Torres v. Deutsche Bank Nat'l Tr. Co. , 256 So.3d 903, 905 (Fla. 4th DCA 2018). There must be competent substantial evidence that the lender complied with the conditions precedent to foreclosure under the terms of the mortgage, including the requirement that the notice of default was actually sent to the borrowers. See PNC Bank Nat'l Ass'n v. Roberts , 246 So.3d 482, 485 (Fla. 5th DCA 2018).

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