Below is an additional excerpt from our Melbourne Foreclosure Attorney's appellate brief challenging the sufficiency of the evidence the bank introduced to show it sent the required notice of acceleration before foreclosing. In this case, the only evidence the bank had that it sent the notice was the notice itself. As argued below, the notice itself, without more, is not sufficient to establish that the letter was in fact sent.
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The Notice of Acceleration is not sufficient evidence in and of itself to establish that the notice was "sent" on the date stated in the notice.
Producing the Notice of Acceleration does not establish that Bank of America actually mailed the notice on the date stated in the notice. Proving that the notice was actually mailed would instead require some form of evidence extrinsic to the notice itself. See
Burt v. Hudson & Keyse, LLC 138 So.3d 1193, 1195 (Fla. 5th DCA 2014) ("[W]hile H&K produced a letter that was addressed to Burt, H&K offered no proof that it mailed the letter, such as a return receipt, an affidavit swearing the letter was
actually mailed to Burt, or
proof of regular business practices.") (emphasis added).
Greentree provided no extrinsic evidence that Bank of America ever mailed the Notice of Acceleration. Mr. Visser did not testify that the notice was actually mailed, by first class mail or otherwise. Mr. Visser testified only that the notice was "sent", though he couldn't sayhow, when or by whom. Specifically, Mr. Visser testified that he did not know who sent the notice, he did not know whether Bank of America sent the notice or whether it would have been sent by a third party vendor, and 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 further testified that he had no personal knowledge of Bank of America's regular business practices, and that he did not know if the person that sent the notices did so in the ordinary course of Bank of America's business or if it was that person's job to send such notices for Bank of America.
Id. The complete lack of any extrinsic evidence to substantiate Greentree's claim that the notice was "sent" tends to prove that the notice was in fact never "sent" at all.
If you are faced with foreclosure in Brevard County (Melbourne, FL, Palm Bay FL, Cocoa-Titusville and the beaches), contact the Bowin Law Group today to schedule a free consultation to discuss your defenses, including whether your mortagage company provided you with all required notices before foreclosing.
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