Diaz v. Wells Fargo Bank, N.A.
189 So. 3d 279
Fla. Dist. Ct. App.2016Background
- Jairo and Delsy Diaz obtained a fixed-rate mortgage in 2008; Wachovia originally serviced the loan and later merged into Wells Fargo (Bank).
- The Diazes missed the October 1, 2011 payment; on November 13, 2011 Bank sent a paragraph-22 default notice stating the amount due, late fee, cure deadline (Dec. 13, 2011), and warned of acceleration/foreclosure.
- Bank filed foreclosure on January 2, 2013; at bench trial Bank introduced the original note, mortgage, default letter, and a complete loan payment history.
- Bank’s sole witness was a long‑time Wells Fargo loan administration manager who testified about Bank’s record‑keeping and the boarding process for prior servicer records.
- Appellants objected to admission of pre‑merger (Wachovia) records and argued Bank failed to satisfy conditions precedent: (1) paragraph 22 notice allegedly defective, and (2) HUD regulations 24 C.F.R. §§203.602 and 203.604 (requiring HUD‑form notice and a face‑to‑face interview or reasonable effort) applied but were not complied with.
- The trial court admitted the loan history and entered final judgment of foreclosure; the Fifth District affirmed.
Issues
| Issue | Plaintiff's Argument (Wells Fargo) | Defendant's Argument (Diaz) | Held |
|---|---|---|---|
| Admissibility of loan payment history (including pre‑merger records) | Witness competent to authenticate business records and explain boarding process; records admissible under business‑records exception | Witness lacked personal knowledge of Wachovia‑created records; records inadmissible hearsay | Trial court did not abuse discretion; witness sufficiently familiar with recordkeeping/boarding; records admitted |
| Sufficiency of paragraph 22 default notice | Letter substantially complied with paragraph 22 and adequately described default and cure amount; Bank had contractual right to require upcoming payment if due | Letter failed to “specify the default” or explain how to cure; therefore condition precedent not met | Notice was not confusing or misleading; substantial compliance excused strict formality; argument not preserved but without merit if preserved |
| Applicability and compliance with 24 C.F.R. §§203.602 & 203.604 (HUD regs) | Burden is on party asserting HUD regulations apply; Bank not required to prove compliance unless applicability shown | HUD regs applied because mortgage used FNMA/FHLMC uniform instrument; Bank failed to provide HUD form notice and face‑to‑face interview | Court held Diaz bore burden to prove HUD regs applied; they failed to present competent evidence that the regulations governed this loan, so foreclosure not barred |
Key Cases Cited
- LaMarr v. Lang, 796 So. 2d 1208 (Fla. 5th DCA 2001) (trial court has wide discretion on evidentiary rulings)
- Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209 (Fla. 5th DCA 2015) (witness need not be preparer of records but must be familiar enough with activity to authenticate, including boarding prior servicer records)
- Cayea v. CitiMortgage, Inc., 138 So. 3d 1214 (Fla. 4th DCA 2014) (authentication standards for business records)
- Alexander v. Allstate Ins. Co., 388 So. 2d 592 (Fla. 5th DCA 1980) (witness familiarity required to admit records)
- Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015) (paragraph‑22 notice designed to convey essential information; not a technical trap)
- Bank of N.Y. Mellon v. Nunez, 180 So. 3d 160 (Fla. 3d DCA 2015) (substantial, not strict, compliance with paragraph‑22 required)
- Alvarez v. Rendon, 953 So. 2d 702 (Fla. 5th DCA 2007) (conditions precedent require at least substantial performance)
- Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010) (party asserting failure of conditions precedent bears burden of proof)
- Dorse v. Armstrong World Indus., Inc., 513 So. 2d 1265 (Fla. 1987) (burden of proving elements of an affirmative defense rests with the asserting party)