238 So. 3d 317
Fla. Dist. Ct. App.2018Background
- Borrowers executed a note and mortgage listing the property address as "9486 South Military Trail #15." Parties later signed a recorded loan modification that listed the property address as "9486 S MILITARY TRL 4, Boynton Beach, FL."
- After default, the lender (Citigroup Mortgage Loan Trust) mailed the required notice of default and right to cure to the address shown in the modification (Unit 4). Borrowers did not cure.
- Lender filed foreclosure and at trial introduced the complaint (with the modification attached) and a witness who authenticated the mailing to the Unit 4 address. Borrowers admitted they received mail addressed to the property showing either "#15" or "Unit 4" and that they then resided at Unit 4.
- Borrowers moved for involuntary dismissal at the close of the lender’s case, arguing the default notice was sent to the wrong address (Unit 4 vs. Unit 15). The trial court granted dismissal and entered final judgment for the Borrowers.
- On appeal, the Fourth District considered whether the lender substantially complied with the mortgage’s notice condition by mailing to the address in the modification, whether the modification was admissible, and whether any lack of strict compliance prejudiced the Borrowers.
- The court held the modification was in evidence, the lender presented prima facie proof of substantial compliance, lack of prejudice supported allowing foreclosure to proceed, and the involuntary dismissal was erroneous — reversed and remanded for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the modification admitted and admissible? | Modification attached to certified complaint is in evidence and is a verbal act (thus admissible). | Modification is hearsay and should not be considered regarding notice/address. | Modification was admitted; treating it as a verbal act was proper. |
| Did the lender comply with the mortgage condition precedent to mail notice to the correct address? | Mailing to the address in the recorded modification constituted substantial compliance; modification superseded original property address. | Mailing to Unit 4 was incorrect because original mortgage listed Unit 15; strict compliance required. | Substantial compliance sufficed; mailing to Unit 4 (modification address) was acceptable. |
| If deviation occurred, did it prejudice the Borrowers? | No prejudice: Borrowers received mail at both unit designations and did not attempt to cure; lender reasonably relied on modification address. | Failure to mail to the mortgage’s property address was fatal regardless of prejudice. | No prejudice shown; lack of prejudice supports permitting foreclosure despite any technical defect. |
| Was involuntary dismissal appropriate at close of plaintiff’s case? | Trial evidence, viewed in Borrower’s favor, still established prima facie case; court cannot weigh credibility on such motion. | Trial court found notice was a problem and dismissed. | Dismissal was improper; evidence supported reversing and remanding for trial. |
Key Cases Cited
- Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So. 3d 58 (Fla. 4th DCA) (standard of review for involuntary dismissal)
- Brundage v. Bank of Am., 996 So. 2d 877 (Fla. 4th DCA) (view evidence favorably to nonmoving party on involuntary dismissal)
- Liberty Home Equity Sols., Inc. v. Raulston, 206 So. 3d 58 (Fla. 4th DCA) (substantial compliance with conditions precedent is sufficient)
- Blum v. Deutsche Bank Tr. Co., 159 So. 3d 920 (Fla. 4th DCA) (plaintiff must prove compliance with conditions precedent)
- Federal Nat’l Mortg. Ass’n v. Hawthorne, 197 So. 3d 1237 (Fla. 4th DCA) (mailing to a disclosed primary address can be substantial compliance absent prejudice)
- Lopez v. JPMorgan Chase Bank, 187 So. 3d 343 (Fla. 4th DCA) (definition of substantial performance)
- Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So. 2d 72 (Fla. 4th DCA) (substantial performance doctrine)
- Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So. 3d 1277 (Fla. 4th DCA) (reasonable reliance on postal information and lack of prejudice support mailing to non-property address)
- Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923 (Fla. 4th DCA) (defective notice not fatal when no prejudice shown)
- Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44 (Fla. 5th DCA) (no prejudice where borrower made no attempt to cure)
- North Am. Philips Corp. v. Boles, 405 So. 2d 202 (Fla. 4th DCA) (avoidances must be pleaded when evidence shifts trial focus)
- Federal Home Loan Mortg. Corp. v. Beekman, 174 So. 3d 472 (Fla. 4th DCA) (issue tried by consent when there is no objection to evidence)