JPMorgan Chase Bank v. Bigley

• Decision Date: 18 September 2013
• Docket Number: No. 3D12–995.,3D12–995.
• Citation: 120 So.3d 1265
• Parties: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellant, v. Svitlana BIGLEY, etc., et al., Appellees.
• Court: Florida District Court of Appeals

120 So.3d 1265

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellant,

v.Svitlana BIGLEY, etc., et al., Appellees.

No. 3D12–995.

District Court of Appeal of Florida, Third District.

Sept. 18, 2013.

Wargo & French, Miami, and Susan Capote, Coconut Grove, for appellant.

Toyne & Mayo and Michael Schimmel, Miami, and Alberto J. Alonso, for appellees.

Before ROTHENBERG, EMAS and FERNANDEZ, JJ.

EMAS, J.

Appellant, JPMorgan Chase Bank (“Chase”), appeals the trial court's directed verdict in favor of Appellee, Jade Winds Association (“Jade Winds”), contending that Jade Winds lacked standing to enforce the mortgage's terms against Chase because Chase was neither a party to, nor a third party beneficiary of, the mortgage.

Chase further contends on appeal that the trial court improperly denied its Motion for Reconsideration as untimely because the only evidence presented to contest timely service was legally insufficient.

We do not reach the merits of Chase's first claim and, for the reasons that follow, we reverse and remand the trial court's order denying Chase's motion for reconsideration, with directions to conduct an evidentiary hearing. In doing so, we answer the following question, which appears to be one of first impression:

In determining whether a motion was timely served by mail, can a private postage-meter mark constitute competent substantial evidence to rebut the prima facie proof of mailing evidenced by the date contained in the certificate of service?

Chase filed suit to foreclose on a mortgage secured by a condominium unit then owned by Appellee Svitlana Bigley (“Bigley”) on October 1, 2009. Chase also named Jade Winds, the entity charged with maintaining the common elements appurtenant to the unit, as a defendant, alleging Chase's lien was superior to Jade Winds' interest in the property.

On March 30, 2010, Chase filed a Motion for Summary Final Judgment of Foreclosure and to Re–Establish a Lost Instrument. While Chase's action was pending, Jade Winds obtained a final judgment in a separate action and took title to the unit by foreclosing its lien for unpaid assessments. The clerk issued a Certificate of Title to Jade Winds on November 9, 2010.

On October 27, 2011, the court held a non-jury trial on Chase's foreclosure action. Jade Winds argued that Chase failed to prove it complied with all conditions precedent under the mortgage, specifically contending Chase failed to introduce the notice of acceleration into evidence. The trial court granted a directed verdict in favor of Jade Winds. Chase was thus precluded from foreclosing on the property.

Following the January 25, 2012 entry of Final Judgment in favor of Jade Winds, Chase filed a Motion for Reconsideration. The certificate of service contained in the motion indicated it was served via First Class U.S. Mail on February 6, 2012, but the Pitney–Bowes private postage-meter stamp placed on the envelope by the attorney for Chase indicates that the envelope was stamped on February 7, 2012. The motion was electronically filed on February 6, 2012, and a hard copy was filed with the clerk on February 13, 2012.

At the subsequent hearing on Chase's motion for reconsideration,¹ Jade Winds argued that Chase mailed the motion on February 7, 2012, and it was therefore untimely, as it was served one day beyond the ten-day deadline for serving such a motion. Chase argued that, because the certificate of service indicated the motion was mailed on February 6, the motion was presumptively timely, and the February 7 private-meter postage mark was not legallysufficient to rebut this prima facie proof. The court orally denied the motion as untimely and rendered its order of denial on March 14, 2012. Chase filed its notice of appeal on April 13, 2012.

On appeal, Jade Winds contends that this Court does not have jurisdiction over this appeal because Chase's untimely motion for reconsideration did not suspend rendition of the final judgment nor toll the time for filing the notice of appeal. SeeFla. R.App. P. 9.020(i). If in fact the motion for reconsideration was untimely, the notice of appeal (which was filed more than thirty days after rendition of the final judgment) is likewise untimely and constitutes a fatal jurisdictional defect. See Dominguez v. Barakat, 609 So.2d 664 (Fla. 3d DCA 1992). Because this issue involves the construction and interpretation of the rules of civil procedure, our standard of review is de novo. Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006).

Motions for reconsideration are governed by Florida Rule of Civil Procedure 1.530(b), which provides in pertinent part:

A motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.

The Final Judgment was entered on January 25, 2012. The last day of the ten-day period was Saturday, February 4, 2012. However, when the last day of the ten-day period falls on a Saturday or Sunday, rule 1.090(a) extends the time period to the following weekday that is not a legal holiday. Accordingly, the time for serving the motion expired on February 6, 2012.

Pursuant to then-existing Florida Rule of Civil Procedure 1.080(b), ² “[s]ervice by mail is deemed complete upon mailing.” Further, then-existing rule 1.080(f) provides that the certificate of service date “is taken as prima facie proof of such service in compliance with this rule.” This is true even though the mailed copy of the motion may not have been received by either the clerk or the opposing party before the expiration of the ten-day time limit. Nesslein v. Nesslein, 672 So.2d 582 (Fla. 3d DCA 1996); Mr. Martinez of Miami, Inc. v. Ponce De Leon Fed. Sav. and Loan Ass'n, 558 So.2d 153, 154 (Fla. 3d DCA 1990).

Moreover, the date set forth by counsel in the certificate of service “creates a rebuttable presumption which may be overcome by competent evidence to the contrary.” Migliore v. Migliore, 717 So.2d 1077, 1079 (Fla. 4th DCA 1998). This court has previously held that “[a] postal cancellation date is not sufficient to rebut the prima facie proof of compliance with Rule 1.080(f).” Nesslein, 672 So.2d at 583.See also Mr. Martinez of Miami, Inc., 558 So.2d at 154 (holding that, in the absence of an evidentiary hearing, a postal cancellation date two days later than the certificate of service date is not sufficient to rebut the prima facie proof of the certificate of service).

The certificate of service signed by Chase's counsel indicates it was served by U.S. mail on February 6, 2012, and this certificate of service date therefore constitutesprima facie proof that service by mailing was effectuated on February 6. However, the envelope in which the motion was mailed to counsel for Jade Winds contains a private postage-meter mark, with a date showing that the postage was placed on the envelope, by the postage-meter machine in the office of Chase's counsel, on February 7, 2012.³

Chase argues that the private postage-meter stamp is the equivalent of a U.S. Postal Service cancellation mark for purposes of determining date of mailing and is therefore legally insufficient to rebut the prima facie proof of the February 6 certificate of service date. Jade Winds counters that this private postage-meter mark is competent substantial evidence to rebut the prima facie proof of the certificate of service date, and in fact establishes that the mailing did not occur until (at the earliest) February 7, a day after the expiration of the ten-day period.

Thus the question presented by this case is whether the Pitney–Bowes private postage-meter mark placed on the envelope is different in kind from a United States Postal Service postage cancellation mark, such that the former could be relied upon by the trial court as competent substantial evidence to rebut the prima facie proof of the certificate of service as the date of mailing. ⁴ This appears to be an issue of first impression in Florida.

Reliance on the certificate of service date as the presumptive mailing date represents a straightforward method of determining service in the absence of competent evidence to the contrary. There is an implicit acknowledgment that, while the certificate of service date may not in fact be the actual date the motion was placed in the hands of the U.S. Postal Service, it establishes the earliest date of mailing, and represents a fair compromise by creatingan easily ascertainable date which the parties and the trial court can rely upon, generally avoiding the need for a separate hearing to make factual determinations of the actual date when the motion was placed into the U.S. mail.

As a corollary, we have recognized that a U.S. Postal Service postage cancellation date on the envelope is insufficient to rebut the prima facie proof of date of mailing as set forth in the certificate of service. See Nesslein, 672 So.2d at 583;Mr. Martinez of Miami, Inc., 558 So.2d at 154. The obvious rationale is that after the motion leaves counsel's office, he or she no longer controls its movement or eventual delivery. Once the envelope is placed into the stream of postal commerce, it is under the control of the U.S. Postal Service, and counsel has no ability to place the cancellation date on the envelope or to effectuate delivery. Thus the most reliable date for establishing when a motion or pleading is “mailed” for purposes of determining “service” is the date when it leaves the hands of counsel and is placed into the hands of the U.S. Postal Service. This will generally be determined by the date indicated by counsel on the certificate of service and serves as prima facie proof of the date of mailing (and therefore “service”) under the rules. How long it takes thereafter for the U.S. Postal Service to place its cancellation mark on the envelope, or to deliver the envelope to the addressee, is deemed legally insufficient to rebut the prima facie proof...