STEVEN E. SOULE v. U. S. BANK NATIONAL ASSOCIATION , 253 So. 3d 679 ( 2018 )

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
July 13, 2018
STEVEN E. SOULE, )
)
Appellant, )
)
v. ) Case No. 2D16-3231
)
U.S. BANK NATIONAL ASSOCIATION, )
as trustee for BNC Mortgage Loan )
Trust 2007-1 Mortgage Pass-Through )
Certificates, Series 2007-1, )
)
Appellee. )
)
BY ORDER OF THE COURT:
Appellant's motion for rehearing is granted, the prior opinion dated May 2,
2018, is withdrawn, and the attached opinion is issued in its place. Because full relief
has been granted by the panel's ruling on the motion for rehearing, Appellant's motion
for rehearing en banc is denied as moot. Appellee's motion to reconsider or strike the
court's order granting appellant's appellate attorneys' fees is denied.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL, CLERK
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STEVEN E. SOULE, )
)
Appellant, )
)
v. ) Case No. 2D16-3231
)
U.S. BANK NATIONAL ASSOCIATION, )
as trustee for BNC Mortgage Loan )
Trust 2007-1 Mortgage Pass-Through )
Certificates, Series 2007-1, )
)
Appellee. )
)
Opinion filed July 13, 2018.
Appeal from the Circuit Court for
Pasco County; Kemba Lewis,
Judge.
Mark P. Stopa of Stopa Law Firm,
LLC, Tampa; and Latasha Scott
of Lord Scott, PLLC, Tampa, for
Appellant.
David S. Ehrlich of Blank Rome
LLP, Fort Lauderdale, for
Appellee.
VILLANTI, Judge.
Steven E. Soule appeals the final judgment of foreclosure entered in favor
of U.S. Bank National Association, as trustee for BNC Mortgage Loan Trust 2007-1
Mortgage Pass-Through Certificates, Series 2007-1 (the Bank). While Soule raised a
number of grounds for reversal of the final judgment, we reject all of his arguments
except one relating to the sufficiency of the evidence to establish that the Bank
complied with paragraph 22 of the mortgage by giving notice of the default to Soule. On
this single basis, we reverse and remand for entry of an involuntary dismissal of the
Bank's case.
In November 2013, the Bank filed its foreclosure complaint against Soule
based on his alleged failure to make his March 2011 payment and all subsequent
payments. In his answer, Soule denied that the Bank had complied with all conditions
precedent to bringing the action and alleged as an affirmative defense the Bank's failure
to comply with the notice provisions of paragraph 22 of the mortgage.
At trial, Ocwen employee Nena Kamman testified on behalf of the Bank.
Ocwen was the servicer of Soule's loan at the time of trial, but Ocwen had taken over
servicing of the loan from Chase, and Chase was the servicer that had prepared and
allegedly mailed the default letter pursuant to paragraph 22 in May of 2011. Kamman
testified that she had never worked for Chase.
During trial, Kamman testified that the default letter was part of the
business records that Ocwen received from Chase. She also testified to the boarding
process for new loans that Ocwen obtained. As part of that testimony, she asserted
that Ocwen would not have boarded a loan if there were any "red flags" related to the
loan. She testified that such a "red flag" might arise if "there was any indication that a
breach letter hadn't been sent." But she did not testify to how anyone at Ocwen would
know whether a default letter that was imaged into Chase's system had or had not been
-2-
mailed or what information might be in Chase's file to indicate that a default letter had
not been mailed. She did testify that a default letter would not have been imaged into
Chase's system if it had not been mailed, but she admitted that she had never been
trained in any of Chase's procedures and she offered no testimony that would show that
she had any personal knowledge of this alleged imaging procedure.
Both at trial and in this appeal, Soule argued that Kamman's testimony
was insufficient to establish that the default letter prepared by Chase had actually been
mailed. Soule admitted that Kamman's testimony was sufficient to permit the Bank to
introduce the default letter into evidence; however, he argued that simply introducing
the letter into evidence was insufficient to show that it was mailed. Relying on Eig v.
Insurance Co. of North America, 447 So. 2d 377, 379 (Fla. 3d DCA 1984), Soule argued
that the Bank had to introduce competent, substantial evidence of what Chase's routine
business practices were in order to rely on those practices to prove conformity
therewith. And because Kamman did not have personal knowledge of Chase's routine
business practices concerning the mailing of default letters, her testimony could not
provide competent, substantial evidence of those practices. Therefore, he argued,
while the default letter itself was admissible, there was no evidence to prove that it was
mailed and so the Bank's case should be dismissed. The trial court rejected this
argument, as initially did we.
At the time of trial and when this case was originally heard at oral
argument, there was no law from this district on the issue of what foundational
testimony was required to prove that a default letter had been mailed by a prior servicer.
However, we recently issued an opinion addressing this exact issue in Spencer v.
-3-
DiTech Financial, LLC, 43 Fla. L. Weekly D720 (Fla. 2d DCA Apr. 4, 2018). In that
case, EverHome was the predecessor servicer to DiTech. Id. at D721. At the
foreclosure trial, Ms. Knight, an employee of DiTech, testified that EverHome, as the
prior servicer, had prepared and mailed the default letter to Spencer in 2010. Id.
However, the testimony established that Ms. Knight had never worked for EverHome,
had no personal knowledge of its practices or procedures for preparing and mailing
default letters, had not read EverHome's policies and procedures for preparing and
mailing default letters, and had never spoken to anyone at EverHome about how this
particular letter had been generated or mailed. Id. Moreover, the evidence showed that
the loan was transferred to DiTech in 2014—four years after the default letter had been
created and allegedly mailed. Id. In finding Ms. Knight's testimony insufficient to prove
that the default letter had been mailed, this court explained:
This evidence was insufficient to show that the default
letter was actually sent. "The fact that a document is drafted
is insufficient in itself to establish that it was mailed." Allen v.
Wilmington Tr., N.A., 216 So. 3d 685, 687-88 (Fla. 2d DCA
2017); see also Edmonds v. U.S. Bank Nat'l Ass'n, 215 So.
3d 628, 630 (Fla. 2d DCA 2017) (citing Allen with approval).
Rather, "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." Allen, 216 So. 3d at 688.
Testimony regarding a company's routine business
practices may establish a rebuttable presumption that the
default letter was mailed. Id. (citing § 90.406, Fla. Stat.
(2014)). But the witness must have personal knowledge of
the company's general mailing practice—meaning that the
witness must be employed by the entity drafting the letters
and must have firsthand knowledge of the company's routine
practice for mailing letters. See id.; Edmonds, 215 So. 3d at
630; see also CitiMortgage, Inc. v. Hoskinson, 200 So. 3d
191, 192 (Fla. 5th DCA 2016) (holding that there was
sufficient evidence to establish mailing based on routine
-4-
business practices where witness testified that she had
personally observed coworkers generate breach letters and
deliver them to the mail room to be collected by the postal
service). Here, Ms. Knight admitted that she was never
employed by EverHome and did not have firsthand
knowledge of EverHome's mailing practices as of the date
the default letter was generated. Therefore, her testimony
was insufficient to establish that the default letter was
mailed.
Id. (emphasis added). And because Ms. Knight's testimony was insufficient to establish
that the default letter was mailed, this court reversed the final judgment and remanded
for entry of an involuntary dismissal. Id.
The facts of this case are essentially on all fours with Spencer. Like
DiTech, Ocwen here was a successor servicer that had not prepared or mailed the
default letter. And Kamman, like Ms. Knight, worked for the successor servicer and had
no personal knowledge of the mailing practices of the predecessor servicer. Therefore,
while Kamman's testimony was sufficient to lay the foundation to admit the letter as a
business record, it was insufficient to prove that Chase had actually mailed the letter
because Kamman had no personal knowledge of either that fact or Chase's policies and
practices for mailing. Without testimony based on such personal knowledge, the Bank's
only competent evidence was that the default letter had been prepared—not that it had
been mailed. Therefore, for the same reasons we did in Spencer, we reverse the final
judgment in this case and remand for entry of an involuntary dismissal.
Reversed and remanded for dismissal.
CASANUEVA and CRENSHAW, JJ., Concur.
-5-