One of the defenses commonly asserted against foreclosure is the bank's failure to send the homeowner a pre-foreclosure notice of intent to accelerate, also known as a default letter. In most cases, if the bank cannot show it sent this notice at least 30 days before filing the foreclosure action, the foreclosure case must be dismissed.
As stated in recent blogs, our Melbourne Florida Foreclosure Attorney recently filed an appeal from the trial court's final judgment of foreclosure on a Brevard family's home. Below is one of our arguments that the bank failed to show that it sent the notice of default before foreclosing. Other arguments will follow in future blogs.
"A mortgagee's right to the security for a mortgage is dependent upon its compliance with the terms of the mortgage contract, and it cannot foreclose until it has proven compliance." DiSalvo v. SunTrust Mortg., Inc. 115 So.3d 438 (Fla.2d DCA 2013). Where the mortgage requires the plaintiff to provide a notice of default and acceleration prior to accelerating the debt and foreclosing, such requirement is a condition precedent to foreclosure.
See Samaroo v. Wells Fargo Bank, 137 So.3d 1127 (Fla. 5th DCA 2014) (reversing summary judgment where bank did not comply with paragraph 22 of the mortgage);
Haberl v. 21st Mortg. Corp., 138 So.3d 1192 (Fla. 5th DCA 2014) (same). For the reasons stated below, Greentree failed to show that Bank of America complied with paragraph 22 of the Mortgage prior to filing this foreclosure action.
- The Notice of Acceleration that Bank of America allegedly"sent" was not properly authenticated.
Pursuant to Fla. Stat. § 90.901, "[a]uthentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Section 90.901 provides multiple examples of the proper means of authentication, with the only relevant one being the "testimony of a witness with knowledge that a matter is what it is claimed to be." See § 90.901,
Comment (a). Pursuant to prior decisions of this Court, "[e]vidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication [under § 90.902]."
See e.g., Jackson v. State, 979 So.2d 1153, 1154 (Fla. 5th DCA 2008) (requiring at least a
prima facie showing of authenticity before admission into evidence).
In the instant case, Mr. Visser's lack of personal knowledge of how, when or by whom the Notice of Acceleration was created eliminates any
prima facie foundation for authentication under § 90.901, or for self-authentication under § 90.902 (11).
See Bryson v. Branch Banking and Trust Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011) (holding that a "purported copy" of a notice of acceleration "cannot be said to be self-authenticating because extrinsic evidence to establish its truthfulness is still required.").
Mr. Visser testified that (i) he never worked for Bank of America, (ii) he had no particular knowledge of Bank of America's record keeping procedures, (iii) he did not know who generated the Notice of Acceleration, (iv) he did not know who sent the notice, (v) he did not know whether Bank of America sent the notice or whether it would have been sent by a third party vendor, and (vi) he did not know if it was even a person that sent the notice rather than an automated system. (Vol. 2, Trial Transcripts page 25, line 16 through page 28, line 3). Mr. Visser even failed to testify as to how he recognized the notice in the first place, which is a fundamental question to be answered before admitting any document into evidence. Greentree provided no other extrinsic evidence to authenticate the Notice of Acceleration as a Bank of America record.
Although Mr. Visser did testify as to the content and substance of the notice, the ability to read from the document does not display sufficient personal knowledge under the circumstances to substantiate that the notice was actually generated and mailed by Bank of America. To the contrary, Mr. Visser's testimony establishes that he cannot authenticate the Notice of Acceleration since he does not know how, when or by whom the notice was created or mailed. The Notice of Acceleration should have been excluded for lack of authentication.
Please return to this blog to learn more about other potential defenses to your foreclosure action. Or, contact our office to schedule a free consultation to discuss you foreclosure defenses.
Bowin Law Group - Brevard's Hometown Law Group