As discussed in prior blogs, before foreclosing, the mortgage company must show that it sent the homeowner a notice of acceleration at least 30 days before filing foreclosure. But even if they can show the notice was sent, the bank must still show that it was sent to the right address. Below is an argument our Melbourne Foreclosure Defense Attorney made regarding a notice sent to a P.O. Box rather than the property address as required by the mortgage.
Even if Bank of America did send the Notice of Acceleration to Mr. Helton, the notice was addressed to a P.O. Box, not the Property Address as is required by the Note and Mortgage.
Pursuant to paragraph 7 of the Note and paragraph 15 of the Mortgage, the Notice of Acceleration must be sent to the Property Address of **** (redacted), unless Mr. Helton directs the lender to send notices elsewhere. The Notice of Acceleration, however, was addressed to a P.O. Box for Mr. Helton's employer, not the Property Address as required by the Note and Mortgage. (Vol. 2, Trial Transcripts page 54, line 24 through page 55, line 9). Mr. Helton testified that he never instructed Bank of America to send notices to any address other than his property address, by phone or in writing. (Vol. 2, Trial Transcripts page 54, line 24 through page 56, line 18). He further stated that he never received the Notice of Acceleration. Id.
To contradict Mr. Helton's testimony, Mr. Visser (bank's witness) testified that Mr. Helton "apparently called" Bank of America to change the address for receiving notices. (Vol. 2, page 58, line 23 through page 59, line 4). Mr. Visser's testimony was based on his review of a
Bank of America record that was never introduced or even offered into evidence. The trial court took over the examination of Mr. Visser about the undisclosed record (Vol. 2, page 59, lines 6 – 20), and allowed Mr. Visser to continue testifying from the purported
Bank of America business record over undersigned counsel's objection. (Vol. 2, page 59, line 21 through page 63, line 18). The trial court never saw the alleged business record. (Vol. 2, page 63, lines 17 – 18). Because Mr. Visser's testimony about the alleged change of address "phone call" was based solely on Bank of America's undisclosed business record, his entire testimony regarding the alleged change of address was inadmissible hearsay.
See Webster v. Chase Home Finance, LLC, (5D14-511, January 16, 2015) (holding that the trial court abused its discretion in allowing oral testimony about the mortgagor's alleged handwritten "change of address" letter without first admitting the business record into evidence).
Accord 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).
Moreover, even if Mr. Visser's testimony regarding an alleged change of address "phone call" were admissible (which it is not), paragraph 15 of the Mortgage requires a request for a change of address to be in writing.
See paragraph 15 ("All notice given by Borrower or Lender in connection with this Security Instrument must be in writing."). Greentree did not present any written request for a change of address, nor did Mr. Visser testify that one existed.
Because the Notice of Acceleration was not addressed to Mr. Helton's property address as required by the Note and Mortgage, the Notice of Acceleration, even if mailed, did not comply with the notice requirements of the Note and Mortgage.
If you are in foreclosure in Brevard County, it is important that you consult with a Foreclosure Attorney in Melbourne, FL to discuss your defenses.
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