Allen v. Wilmington Trust, N.A.
| Citation | 216 So.3d 685 |
| Decision Date | 24 March 2017 |
| Docket Number | Case No. 2D15–2976 |
| Parties | John ALLEN, a/k/a John T. Allen, Appellant, v. WILMINGTON TRUST, N.A., Successor Trustee to Citibank, N.A., as Trustee f/b/o the Registered Holders of Structured Asset Mortgage Investments II Trust 2007–AR6, Mortgage Pass–Through Certificates, Series 2007–AR6; Constance Allen–Willoughby; and South Gate Community Association, Inc., Appellees. |
| Court | Court of Appeal of Florida (US) |
John ALLEN, a/k/a John T. Allen, Appellant,
v.
WILMINGTON TRUST, N.A., Successor Trustee to Citibank, N.A., as Trustee f/b/o the Registered Holders of Structured Asset Mortgage Investments II Trust 2007–AR6, Mortgage Pass–Through Certificates, Series 2007–AR6; Constance Allen–Willoughby; and South Gate Community Association, Inc., Appellees.
Case No. 2D15–2976
District Court of Appeal of Florida, Second District.
Opinion filed March 24, 2017.
Rehearing Denied May 12, 2017
Gregg Horowitz, Sarasota, for Appellant.
Sarah T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for Appellee Citibank.
No appearance for remaining Appellees.
SILBERMAN, Judge.
John Allen seeks review of a final judgment of foreclosure which was entered after a nonjury trial. Allen argues that Wilmington Trust, N.A., failed to prove that it met the condition precedent of giving notice of acceleration. We agree and reverse.
Paragraph 22 of the mortgage requires that the lender give notice to the borrower prior to acceleration and sets forth several required terms of the notice. Paragraph 15 requires that the notice be written and provides that any such notice "shall be deemed to have been given to Borrower when mailed by first class mail." In his answer to the foreclosure complaint, Allen denied that the Trust met all conditions precedent. He also asserted as an affirmative defense that the Trust failed to meet the condition precedent of giving notice of acceleration.
At trial, the Trust presented the testimony of Christine Coffron, a case manager with Select Portfolio, the current servicer for the Trust. Coffron testified about the boarding process Select Portfolio used to verify the records of the prior servicer, EMC Mortgage Corporation. Coffron also testified that the records contained a notice of acceleration letter addressed to Allen and dated March 12, 2010. She added that because the letter existed, it had been sent. Further, she stated that the account did not contain anything indicating that the letter was returned as undeliverable and "servicers aren't in the habit of generating letters that they don't send." However, she acknowledged that there were no records reflecting that the letter actually had been mailed and that she did not know EMC's mailing procedures.
Allen unsuccessfully objected to Coffron's testimony that EMC had mailed Allen the notice letter. Allen asserted that the Trust had not established a foundation for the testimony. At the...
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