230 So. 3d 546
Fla. Dist. Ct. App.2017Background
- In 2002 the Kamins executed a note and mortgage; foreclosure suit was filed in 2013 by CitiMortgage (later substituted by FNMA).
- CitiMortgage/FNMA attached a default letter and a Seterus (loan sub-servicer) affidavit to FNMA’s summary judgment motion asserting the Kamins were given notice of default prior to acceleration and suit.
- The Kamins did not answer the complaint but submitted affidavits asserting they never received any default notice; they also moved to dismiss and for summary judgment (the amended motion was not ruled on before FNMA’s motion).
- The trial court granted FNMA’s motion and entered final judgment of foreclosure; the Kamins’ rehearing motion was denied and they appealed.
- The appellate court reviewed de novo and found the record created a genuine issue whether CitiMortgage actually mailed or delivered the paragraph 22 default notice required as a condition precedent to foreclosure.
- The court reversed and remanded because FNMA’s evidence (the Seterus affidavit and the draft default letter) did not conclusively prove mailing or delivery; the existence of the drafted letter alone is insufficient proof of mailing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved, as a condition precedent, that the mortgage default notice required by paragraph 22 was mailed or delivered | Seterus affidavit stating notice was "properly sent" + the default letter itself show notice was given | Kamins’ affidavits state they never received notice; Seterus lacked personal knowledge of CitiMortgage’s mailing practices and there is no mailing log or return receipt | Reversed: genuine issue of material fact exists because FNMA did not produce proof of mailing/delivery or an affiant with personal knowledge of CitiMortgage’s mailing practices |
| Whether a borrower’s affidavit of non-receipt alone creates a genuine issue of fact | FNMA implied non-receipt does not by itself defeat proof of mailing when plaintiff offers other evidence | Kamins argued their non-receipt affidavits raise a factual dispute | Court rejected the proposition that non-receipt alone is sufficient to create a genuine issue; but here plaintiff still failed to prove mailing, so reversal was required |
Key Cases Cited
- Verizzo v. Bank of N.Y., 28 So.3d 976 (Fla. 2d DCA) (summary judgment reviewed de novo; burden when motion filed before answer)
- BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA) (plaintiff moving for summary judgment before answer must show defendant cannot raise genuine issues)
- E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So.2d 763 (Fla. 2d DCA) (same principle regarding pre-answer summary judgment burden)
- Edmonds v. U.S. Bank National Ass’n, 215 So.3d 628 (Fla. 2d DCA) (existence of drafted default letters is insufficient proof they were mailed or delivered)
- Allen v. Wilmington Trust, N.A., 216 So.3d 685 (Fla. 2d DCA) (witness establishing routine mailing practice must have personal knowledge to create rebuttable presumption of mailing)