Thorlton v. Nationstar Mortg., LLC, Case No. 2D17-2328

CourtCourt of Appeal of Florida (US)
Writing for the CourtMORRIS, Judge.
Citation257 So.3d 596
Parties Peggy A. THORLTON and William D. Thorlton, Appellants, v. NATIONSTAR MORTGAGE, LLC, Appellee.
Docket NumberCase No. 2D17-2328
Decision Date17 October 2018

257 So.3d 596

Peggy A. THORLTON and William D. Thorlton, Appellants,
v.
NATIONSTAR MORTGAGE, LLC, Appellee.

Case No. 2D17-2328

District Court of Appeal of Florida, Second District.

Opinion filed October 17, 2018.


Randall O. Reder of Randall O. Reder, P.A., Tampa, for Appellants.

Nancy M. Wallace and Ryan D. O'Connor of Akerman LLP, Tallahassee; William P. Keller of Akerman LLP, Fort Lauderdale; and David A. Karp of Akerman LLP, Tampa, for Appellee.

MORRIS, Judge.

Peggy A. and William D. Thorlton appeal the final judgment of foreclosure entered against them and in favor of Nationstar Mortgage, LLC, following a bench trial. For the reasons we explain, we conclude that Nationstar adequately established that its predecessor in interest,

257 So.3d 598

Chase Home Finance a/k/a JPMorgan Chase Bank National Association satisfied a condition precedent to filing suit: providing written notice of default as required by paragraph 22 of the mortgage. Thus we affirm on that issue. We affirm on all other issues without further comment.

BACKGROUND

On May 13, 2003, the Thorltons executed a promissory note and mortgage in favor of Wachovia Mortgage Corporation. Paragraph 22 of the mortgage provided that prior to acceleration, the lender must give the borrower notice and an opportunity to cure the default. Paragraph 15 provided that any such notice must be written and that it "shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means."

In 2008, Chase Home Finance filed a foreclosure complaint against the Thorltons. Chase alleged that it was the servicer of the loan and acting on behalf of the owner. That complaint alleged generally that all conditions precedent to the acceleration of the note and mortgage had been performed.

Chase subsequently filed two motions for substitution of party plaintiff, alleging first that it had merged with JPMorgan Chase Bank N.A. and, at a later time, that it had become organized under a new charter and had changed its name to JPMorgan Chase Bank, National Association. In July 2016, prior to trial, a motion to substitute Nationstar as the party plaintiff was filed and ultimately granted.

At trial, Nationstar admitted a copy of the default letter purportedly mailed to the Thorltons on October 2, 2008, in compliance with paragraph 22. The letter contained a header proclaiming "CERTIFICATE OF MAILING." As part of the same exhibit, Nationstar included a screenshot from Chase's electronic records indicating that the default letter was scanned into Chase's system on October 3, 2008. The exhibit was admitted through the testimony of Jason George, a default case specialist employed by Nationstar. Mr. George testified that he had previously worked for JPMorgan Chase and, prior to that, worked for Chase Home Finance before the two entities merged. Mr. George testified he worked for Chase from July 2011 until March 2015. He testified generally about his familiarity with Chase's practices and procedures for creating and maintaining records as well as his familiarity with the boarding process that occurs when one lender takes over the servicing of a loan from another lender.

Prior to the admission of the default letter, the Thorltons' counsel objected based on "hearsay, lack of foundation, and lack of personal knowledge." Specifically, the Thorltons' counsel argued that Mr. George did not have personal knowledge of whether the letter was actually mailed out, regardless of whether it was mailed by Chase or by a third-party vendor.1 The Thorltons' counsel also argued that Mr. George was not qualified to lay a business records predicate for the admission of the document when the letter was mailed "by yet another department of the company that he apparently spoke to someone about." The trial court overruled the objection and admitted the letter.

During questioning about the letter, Mr. George testified that the letter was part of Nationstar's business records that had previously been part of Chase's business records. He testified that the records were

257 So.3d 599

made by employees with personal knowledge of the information being entered at the time it was entered, that the records were kept in the course of Chase's regularly-conducted business activities, and that it was Chase's regular business practice to make and maintain such records. When asked how he knew that the letter was mailed to the Thorltons, Mr. George responded: "That was the routine practice back then for Chase Home Finance."

On cross-examination, Mr. George testified that he worked in multiple departments with Chase and Nationstar, including two days in Chase's breach letter department. Mr. George acknowledged that Chase used a third-party vendor to mail the breach letters and that he knew this because he worked with the third-party vendor during his training. Mr. George explained that the third-party vendor obtains a PDF copy of the breach letter from the lender, prints and mails it first class, and then sends a CD back to the lender informing the lender that the letter was mailed. Mr. George explained that the lender also receives proof of mailing via a copy of each letter with a "proof of mailing stamp from the post office." Mr. George subsequently admitted that he did not work for the third-party vendor at the time that the Thorltons' breach letter was mailed and that he never actually worked for the third-party vendor. He explained that his knowledge about the third-party vendor's mailing process came through his two-day assignment in Chase's breach letter department. He also explained that his knowledge about the third-party vendor's mailing process came entirely from other Chase employees who told him about the third-party vendor.

On appeal, the Thorltons challenged the sufficiency of the evidence regarding the mailing of the default letter. Specifically, the Thorltons argued that because Mr. George did not work for Chase at the time the letter was mailed, he could not have personal knowledge of that issue and, as a result, Nationstar failed to prove it complied with the condition precedent set forth in paragraph 22 of the mortgage.

In response, Nationstar argued that Mr. George's testimony regarding Chase's routine business practices was sufficient to establish that the letter was mailed. Nationstar asserted that Mr. George was not required to have worked for Chase at the time the letter was mailed in order to establish his knowledge of Chase's routine business practices.

After all briefs had been filed in this case, this court issued Spencer...

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8 practice notes
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...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 DCA 2018) ; CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016). And a third is properly admitted rec......
  • Hicks v. State, No. 1D17-1830
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...1st DCA 2013) ).In fairness, we should have allowed supplemental briefing on this issue. See, e.g., Thorlton v. Nationstar Mortg., LLC , 257 So. 3d 596, 601 (Fla. 2d DCA 2018) (noting that "no due process violation has occurred" through the court's reliance on a new decision released after ......
  • Lapace v. State, Case No. 2D17-1493
    • United States
    • Court of Appeal of Florida (US)
    • October 17, 2018
    ...that the deputies had an objectively reasonable basis for believing that there was an emergency that required immediate police attention.257 So.3d 596 Allowing police to use a resident's reaction to law enforcement's presence at their home and the resident's contemporaneous clear expression......
  • Wells Fargo Bank, N.A. v. Cook, Case No. 2D17-3913
    • United States
    • Florida District Court of Appeals
    • July 26, 2019
    ...the paragraph 22 letter was created and mailed, to establish a rebuttable presumption of mailing. See Thorlton v. Nationstar Mortg., LLC, 257 So. 3d 596, 601-02 (Fla. 2d DCA 2018) (affirming final judgment of foreclosure where Nationstar sufficiently established mailing of the paragraph 22 ......
  • Request a trial to view additional results
8 cases
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...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 DCA 2018) ; CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016). And a third is properly admitted rec......
  • Hicks v. State, No. 1D17-1830
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...1st DCA 2013) ).In fairness, we should have allowed supplemental briefing on this issue. See, e.g., Thorlton v. Nationstar Mortg., LLC , 257 So. 3d 596, 601 (Fla. 2d DCA 2018) (noting that "no due process violation has occurred" through the court's reliance on a new decision released after ......
  • Lapace v. State, Case No. 2D17-1493
    • United States
    • Court of Appeal of Florida (US)
    • October 17, 2018
    ...that the deputies had an objectively reasonable basis for believing that there was an emergency that required immediate police attention.257 So.3d 596 Allowing police to use a resident's reaction to law enforcement's presence at their home and the resident's contemporaneous clear expression......
  • Wells Fargo Bank, N.A. v. Cook, Case No. 2D17-3913
    • United States
    • Florida District Court of Appeals
    • July 26, 2019
    ...the paragraph 22 letter was created and mailed, to establish a rebuttable presumption of mailing. See Thorlton v. Nationstar Mortg., LLC, 257 So. 3d 596, 601-02 (Fla. 2d DCA 2018) (affirming final judgment of foreclosure where Nationstar sufficiently established mailing of the paragraph 22 ......
  • Request a trial to view additional results

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