...continued from the prior post by our Melbourne Florida Foreclosure Attorney
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Even if Greentree could show that Bank of America sent the Notice of Acceleration to the correct address, Greentree failed to show that the notice was "given" to Mr. Helton at least 30 days beforefiling this foreclosure action.
Paragraph 22 of the Mortgage requires Bank of America to "give" Mr. Helton a Notice of Acceleration at least 30 days before filing foreclosure. Pursuant to paragraph 15 of the Mortgage, the Notice of Acceleration is "deemed given" to Mr. Helton on the date it is mailed, but only if the notice is sent by first-class mail. If the notice is sent by any means other than first-class mail, it is deemed "given" when "actually delivered" to Mr. Helton. Greentree failed to provide any evidence to establish that Bank of America "mailed" the notice to Mr. Helton 30 days before filing this foreclosure action, whether by first class mail or otherwise. Instead, Greentree merely testified that the notice was "sent" to Mr. Helton, though Mr. Visser did not know how, when or by whom. (Vol. 2, Trial Transcripts page 25, line 16 through page 27, line 18).
There is simply no evidence upon which the trial court could conclude that Bank of America "actually mailed" the Notice of Acceleration to Mr. Helton, much less that it actually mailed the notice by first class mail 30 days before filing this foreclosure action.See Kurian v. Wells Fargo Bank, National Association, 114 So.3d 1052, 1055 (Fla. 4th DCA 2013) (reversing summary judgment where the bank did not establish that the notice of acceleration was sent by first class mail pursuant to paragraph 15 of the mortgage, which was one of many failures in the notice). This is especially true considering Mr. Helton's unrefuted testimony that he never received the Notice of Acceleration. (Vol. 2, Trial Transcripts page 54, line 24 through page 56, line 18). Because there is no testimony as to how, when or by whom the Notice of Acceleration was allegedly sent, Greentree did not show that the Bank of America mailed the notice by first class mail at least 30 days before filing this foreclosure action.
Moreover, because Mr. Helton's testimony that he never received the notice was unrefuted, Greentree failed to show that the notice was actually delivered to Mr. Helton at least 30 days before this foreclosure action. Therefore, Greentree failed to show that Bank of America "gave" Mr. Helton the Notice of Acceleration in the manner required by paragraph 15 of the Mortgage.
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