Before foreclosing, bank must show HOW it sent a pre-foreclosure notice of acceleration
Posted on Mar 9, 2015 7:50am PDT
This post is a follow up to previous posts which provide excerpts from an appellate brief filed by our Melbourne FL Foreclosure Attorney. The appeal is from a foreclosure judgment in Brevard County, and seeks to overturn the foreclosure. This excerpt relates to the homeowner's argument that the bank failed to showhow it sent the required Notice of Intent to Accelerate, also known as a default letter. If the bank fails to showhow it sent the letter, the foreclosure case may be dismissed. In the case below, the bank failed to how it sent the letter
The only testimony Greentree provided to establish that the Notice of Acceleration was ever given to Mr. Helton was Mr. Visser's reference to a Bank of America "screen shot" that purported to indicate that
Bank of America "sent" the notice, although Mr. Visser doesn't state
how, when or by whom. (Vol. 2, Trial Transcripts page 24, line 15 through page 25, line 14). Because that "screen shot" was not admitted or even offered into evidence, Mr. Visser's testimony concerning the alleged contents of the "screen shot" was inadmissible.See Bolin v. State, 736 So.2d 1160, 1167 (Fla. 1999) (holding that, "where no actual records were offered or admitted[,] [o]ral testimony concerning business records is not admissible under [§ 90.803(6)]");
Richardson v. State, 875 So.2d 673, 676 (Fla. 1st DCA 2004) (holding that "section 90.803(6)(a), Florida Statutes, does not authorize hearsay
testimony concerning the contents of business records which have not been admitted into evidence.") (emphasis in original) (citations omitted).
Because undersigned counsel objected to Mr. Visser's testimony on hearsay grounds, the trial court erred in allowing Mr. Visser's testimony. (Vol. 2, Trial Transcripts page 17, line 22 through page 19, line 20; page 24, line 15 through page 25, line 14; page 40, line 12 - 17). Greentree presented no other evidence that Bank of America gave Mr. Helton the Notice of Acceleration as required by paragraph 22 of the Mortgage. Because paragraph 15 of the Mortgage states that compliance with paragraph 22 is a condition precedent to this foreclosure, the trial court erred in entering Final Judgment for Greentree.
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