IN THE DISTRICT COURT OF APPEAL FIFTH DISTRICT, STATE OF FLORIDA RECEIVED, 8/3/2016 12:15 PM, Joanne P. Simmons, Fifth District Court of Appeal CITIMORTGAGE, INC., DCA Case No. 5D15-4134 Case No.: Plaintiff/Appellant, 2010-CA-34542-XXXX-XX vs. BARBARA J. CAULKETT, Defendants/Appellees. / INITIAL BRIEF OF APPELLANT, CITIMORTGAGE, INC. Appeal From a Final Order of the Circuit Court NANCY M. WALLACE (65897) nancy.wallace@akerman.com elisa.miller@akerman.com michele.rowe@akerman.com Akerman LLP 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Telephone: (850) 224-9634 Telecopier: (850) 222-0103 WILLIAM P. HELLER (987263) william.heller@akerman.com lorraine.corsaro@akerman.com Akerman LLP Las Olas Centre II, Suite 1600 350 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Telephone: (954) 759-8945 Telecopier: (954) 463-2224 PAUL W. ETTORI (84150) paul.ettori@akerman.com marilyn.cancel@akerman.com Akerman LLP 420 S. Orange Avenue, Suite 1200 Orlando, FL 32801-4904 Telephone: (407) 419-8552 Telecopier: (407) 254-3705 Attorneys for Appellant {36668911;2}
TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...10 ARGUMENT...12 Standard of Review...12 Argument...12 I. THE COURT ERRED IN FINDING CITIMORTGAGE DID NOT SATISFY CONDITIONS PRECEDENT TO FORECLOSURE... 12 A. CitiMortgage Complied With Conditions Precedent... 12 B. Ms. Caulkett Is Unable To Show Prejudice... 15 C. Receipt Of The Notice Of Default Is Not Required... 20 II. FINAL JUDGMENT OF FORECLOSURE SHOULD BE ENTERED IN FAVOR OF CITIMORTGAGE BECAUSE IT PRESENTED COMPETENT, SUBSTANTIAL EVIDENCE TO SUPPORT FORECLOSURE... 22 CONCLUSION...26 CERTIFICATE OF SERVICE...28 CERTIFICATE OF FONT SIZE...29 {36668911;2}
TABLE OF AUTHORITIES Cases Page Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242 (Fla. 5th DCA 2012)...19 Bank of America v. Nash, --- So. 3d ---, 2016 WL 2596015 (Fla. 5th DCA May 6, 2016)...22 Bank of N.Y. Mellon v. Nunez, 180 So. 3d 160 (Fla. 3d DCA 2015)...12 Craigside, LLC v. GDC View, LLC, 74 So. 3d 1087 (Fla. 1st DCA 2011)...12 Fed. Nat'l Mortg. Ass'n v. Morton, Case No. 2D14-5165, 2016 WL 3265485 (Fla. 2d DCA June 15, 2016)...15, 19 Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015)...12, 13 Harvey v. Deutsche Bank Nat'l Trust Co., 69 So. 3d 300 (Fla. 4th DCA 2011)...24, 25 In re Estate of Sterile, 902 So. 2d 915 (Fla. 2d DCA 2005)...12 Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011)...17 McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012)...22 Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d (Fla. 2d DCA 2007)...24 Perry v. Fairbanks Capital Corp., 888 So. 2d 725 (Fla. 5th DCA 2004)...24 Philogene v. ABN Amro Mortg. Grp., Inc., 948 So. 2d 45 (Fla. 4th DCA 2006)...24 {36668911;2} ii
Poinciana Hotel of Miami Beach, Inc. v. Kasden, 370 So. 2d 399 (Fla. 3d DCA 1979)...22 Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010)...24, 25 Roman v. Wells Fargo Bank, 143 So. 3d 489 (5th DCA 2014)...20, 21 Rosario v. PHH Mortg. Corp., 148 So. 3d 154 (5th DCA 2014)...21 Stanley v. Wells Fargo Bank, 937 So. 2d at 708 (Fla. 5th DCA 2006)...24 U.S. Bank Nat'l. Ass'n v. Laird, --- So. 3d ---, 2016 WL 3569898 (Fla. 5th DCA July 1, 2016)...16 Vasilevskiy v. Wachovia Bank, Nat'l Ass'n, 171 So. 3d 192 (Fla. 5th DCA 2015)...12, 13 Voght v. Galloway, 291 So. 2d 579 (Fla. 1974)...23 Wekiva Springs Reserve Homeowners v. Binns, 61 So. 3d 1190 (Fla. 5th DCA 2011)...12 Florida Statutes 673.1041, FLA. STAT....23 673.3011, FLA. STAT....23 Rules Rule 9.210(a)(2), FLA. R. APP. P...29 {36668911;2} iii
STATEMENT OF CASE AND FACTS 1 Appellant CitiMortgage, Inc. appeals a final judgment denying foreclosure entered October 28, 2015 and final order of dismissal entered December 9, 2015. They should be vacated, and judgment should be entered in favor of CitiMortgage. The facts are as follows. Appellee Barbara Caulkett executed a promissory note in favor of Atlantic Mortgage Services, Inc., for $170,000 on March 18, 2005. [R 544 46.] Ms. Caulkett executed a mortgage securing the loan on the same day. [R 548 64.] The property is located in Melbourne, Florida. [R 550.] CitiMortgage filed a single count foreclosure complaint against Ms. Caulkett and others on June 1, 2010. [R 43 64.] CitiMortgage alleged Ms. Caulkett failed to make her October 1, 2009 mortgage payment and all subsequent payments. [R 43.] CitiMortgage alleged it owned the note and all conditions precedent to foreclosure were satisfied. [Id.] Ms. Caulkett filed a motion to dismiss. [R 73 9.] The original note and mortgage were filed with the court on November 1, 2010. [R 105 27.] The original note complaint reflects an indorsement from the original lender, Atlantic Mortgage Services, Inc. dated March 23, 2005 in favor of ABN AMRO Mortgage 1 All record references are to the record page number (e.g., [R 1] references record page 1). All transcript references are to the transcript contained in the supplemental record (e.g. [Tr. 1] references transcript page 1). {36668911;2}
Group, Inc. [R 108, 309.] The note also reflects a blank endorsement from AMN AMRO Mortgage Group, Inc. [Id.] Ms. Caulkett withdrew her motion to dismiss by agreed order. [R 128.] Following an unsuccessful attempt at mediation, Ms. Caulkett again moved to dismiss the complaint. [R 156 61.] Prior to a ruling on this second motion to dismiss, Ms. Caulkett filed an amended motion to dismiss. [R 175 83.] CitiMortgage filed an amended verified complaint on July 25, 2012. [R 210 34.] The complaint attached a copy of the note and mortgage. [R 216 34.] Ms. Caulkett again filed a motion to dismiss. [R 241 47.] The court granted this motion to dismiss. [R 254.] CitiMortgage then filed a verified second amended complaint on December 5, 2012. [R 255 83.] Ms. Caulkett again moved to dismiss the second amended complaint on February 15, 2013, [R 286 91], which the court granted on May 21, 2013 [R 298]. CitiMortgage filed a third amended complaint on June 13, 2013. [R 302 31.] Ms. Caulkett again moved to dismiss. [R 393 95.] The court denied Ms. Caulkett's motion to dismiss. [R 431.] Ms. Caulkett then filed an answer and affirmative defenses. [R 432 49.] The answer admitted the complaint alleged a cause of action for foreclosure, the court had jurisdiction over the subject matter, the plaintiff declared the full amount payable under the note and mortgage, Caulkett is the owner of the property, and the plaintiff had retained an attorney and {36668911;2} 2
was obligated to pay a reasonable fee for such services. [R 432.] The answer generally denied the remaining allegations in the complaint. [Id.] The answer also interposed affirmative defenses. [Id.] A non-jury trial occurred on September 21, 2015. CitiMortgage presented a business operations analyst, Adriane Lennox, as its witness. [Tr. 17.] Ms. Lennox testified that she reviewed the loan file and was familiar with the loan. [Tr. 18 19.] Ms. Lennox confirmed CitiMortgage was the loan servicer. [Tr. 42 43.] Ms. Lennox testified regarding the original note and mortgage that had been previously filed with the court but were unavailable during the trial due to Brevard County's electronic records policy. [Tr. 23 24.] Copies of the note and mortgage were admitted, over objection, and Ms. Lennox testified that the copies of the original note and mortgage matched the information in CitiMortgage's business records related to Ms. Caulkett's loan. [Tr. 34 35; R 543 65.] Ms. Lennox testified regarding a certified copy of an assignment of mortgage from Atlantic Mortgage Services, Inc. to ABN AMRO Mortgage Group, Inc., recorded in the public records of Brevard County on March 28, 2005. [Tr. 38 39; R 566.] She further testified that the assignment included both the note and the mortgage associated with Ms. Caulkett's loan. [Tr. 39.] Ms. Lennox also testified regarding the certificate of merger between ABN AMRO Mortgage Group Inc. into CitiMortgage, Inc., with an effective date of {36668911;2} 3
September 1, 2007. [Tr. 41; R 567 72.] She also testified that, based on her training and experience, Ms. Caulkett's loan was among those transferred in connection with the merger and all of the related loan information and records were incorporated into CitiMortgage's records at that time. [Tr. 41 42.] The certificate of merger was entered into evidence without objection. [Tr. 40.] Ms. Lennox next testified concerning the demand letter sent to Ms. Caulkett. [Tr. 44 45; R 573 75.] She testified that the demand letter is among CitiMortgage's business records and it is CitiMortgage's regular practice to create and maintain such records. [Tr. 44.] The demand letter was entered over objection. [Tr. 65.] Ms. Lennox testified that the demand letter was dated November 5, 2009, referenced a date of default of October 1, 2009, provided Ms. Caulkett with notice that the loan was in default and the consequence of not curing the default, and the notices in the demand letter were prepared in accordance with the note and mortgage. [Tr. 66.] Ms. Lennox then testified regarding a consolidated note screen shot, admitted without objection as a CitiMortgage business record, showing the demand letter was sent on November 5, 2009, the same date as the demand letter was generated. [Tr. 69; Tr. 70; R 576.] Ms. Lennox further testified that, based on her knowledge of CitiMortgage's procedures for mailing demand letters, the note {36668911;2} 4
reading "GENERAL DEMAND REG MAIL 11/05/09" only appears if and when the letter is actually sent. [Tr. 70.] Next, Ms. Lennox testified regarding the payment history for Ms. Caulkett's loan. [Tr. 76 78; R 577 614.] Ms. Lennox explained that the payment histories were retrieved from CitiMortgage's business records, it is CitiMortgage's regular practice to maintain payment histories, such payment histories are created by a person with knowledge of the events being recorded at or near the time the events occur, and the records are regularly audited and checked for accuracy. [Tr. 72.] The composite payment history was admitted over objection. [Tr. 76.] The payment history shows Ms. Caulkett's loan is in default, the last payment was on September 8, 2009, and no payments were made after this date. [Tr. 76 77.] Ms. Lennox also testified as to the outstanding amounts due and owing, a summary of which was admitted without objection. [Tr. 79 80; R 615 20.] The judgment figures for the loan matched the payment history and the amounts due under the note and mortgage. [Tr. 79.] The payment history showed total principal amount due of $160,354.02, total interest due of $35,195.31, taxes of $6,449.32 and insurance of $8,274.57. [Tr. 80.] Ms. Lennox testified that CitiMortgage had agreed to pay $14,929.50 in attorney fees and the total judgment sought was $227,707.71. [Tr. 81.] {36668911;2} 5
During cross examination by counsel for Ms. Caulkett, Ms. Lennox was shown a copy of CitiMortgage's Exhibit 5 (the consolidated note screenshot) and testified that proof the notice of default was mailed is established by the appearance of the note in the system. [Tr. 82.] Ms. Lennox further testified that the notices themselves are mailed by a vendor and uploaded into CitiMortgage's records once sent out. [Tr. 85.] Ms. Lennox further testified that the notice of default was sent to Ms. Caulkett at 1199 White Oak Circle, Melbourne, Florida 32934 on the basis of her knowledge of how such notices are generated and formatted despite the presence of another similar address that appeared in the "Re:" line of the letter. [Tr. 91 92.] The notice address pursuant to the mortgage was 1199 White Oaks Circle, Melbourne, Florida 32935. [Tr. 94.] Ms. Lennox confirmed that the mailing address for Ms. Caulkett is 1199 White Oak Circle, Melbourne, Florida 32934, and explained there is no record of returned mail from that address among CitiMortgage's records. [Tr. 95.] On re-direct examination, Ms. Lennox confirmed there is a team designated to search for and analyze returned mail and notate instances of returned mail in CitiMortgage's business records, and that no such notation was present for Ms. Caulkett's loan based on her review of those records. [Tr. 107 08.] {36668911;2} 6
Following the close of CitiMortgage's case, counsel for Ms. Caulkett moved for an involuntary dismissal based on CitiMortgage's alleged lack of standing. [Tr. 110.] The court denied this motion. [Tr. 112.] Ms. Caulkett was then called to testify under direct examination. [Tr. 112 13.] Ms. Caulkett testified that she did not receive the notice of default. [Tr. 114.] She testified that, while she was waiting for the default notice, she called CitiMortgage to have it sent. [Tr. 115.] Ms. Caulkett testified that, having not received the notice of default in November, she continued calling CitiMortgage until approximately April of the following year. [Tr. 116.] She further testified that she did not receive "any correspondence at all from CitiMortgage saying how much [she] owed[.]" [Tr. 117.] Ms. Caulkett testified she was faxed a reinstatement letter from CitiMortgage's then-counsel in April 2010. [Tr. 118; R 622.] The letter was received into evidence despite CitiMortgage's hearsay objection. The letter required receipt of the reinstatement funds by April 15, 2010. [Tr. 120.] Ms. Caulkett testified that, had she been given 30 days to reinstate the loan, she would have had enough time to do so. [Tr. 121.] She sent the funds to CitiMortgage counsel after the deadline, and they were refused and returned. [Tr. 125.] Ms. Caulkett then testified that she received a second letter from CitiMortgage counsel dated April 28, 2010, also admitted over objection, rejecting {36668911;2} 7
her untimely tender of the reinstatement funds. [Tr. 129, 132; R 625.] Next, Ms. Caulkett testified that a second reinstatement letter arrived from CitiMortgage counsel on May 25, 2010. [Tr. 132; R 627 28.] The letter demanded $10,494.27 to reinstate the loan. [Tr. 133.] The letter was admitted over objection. [Tr. 134.] Ms. Caulkett concluded her direct testimony by stating that had she been provided with 30 days' notice, she could have reinstated the loan. [Tr. 135.] Ms. Caulkett was cross-examined by CitiMortgage counsel. [Tr. 135.] She admitted she is obligated under the mortgage and note, she made mortgage payments to CitiMortgage, and she last made a payment in 2009. [Id.] Ms. Caulkett was shown a copy of a December 2009 mortgage loan statement that she admitted receiving. 2 [Tr. 138; R 621.] Ms. Caulkett admitted she was three months behind in December 2009 and she did not make a payment at that time. [Tr. 139.] She admitted receiving a mortgage loan statement each month from CitiMortgage. [Id.] She testified she was on notice she would be in foreclosure if she did not make her November 2009 payment. [Tr. 140.] Under continued questioning by CitiMortgage's counsel, Ms. Caulkett admitted she did not make her reinstatement payment by the stated deadline of April 15, 2010. [Tr. 141 42.] She further admitted the correct address for her house is 1199 White Oak Circle, and that the correct ZIP code is 32934. [Tr. 142.] 2 The statement was among Ms. Caulkett's records she brought with her to trial. {36668911;2} 8
Ms. Caulkett then testified that the address on the notice of default was correct. [Tr. 143.] She also admitted that she failed to make the second reinstatement payment due June 1, 2010, and did not ask for another reinstatement quote after that. [Tr. 147 48.] At the close of testimony, the court reserved ruling and asked for written closing statements. [Tr. 152.] Both parties submitted closing. [R 636 48; 653 79.] On October 28, 2015, in a written opinion, the court found "[CitiMortgage] proved that it was entitled to enforce the subject debt endorsed by a promissory note and secured by a mortgage and [CitiMortgage] proved that [Ms. Caulkett] defaulted in the payment of the mortgage. With respect to the conditions precedent, [CitiMortgage] failed to provide [Ms. Caulkett] with proper timely notice of the default and reasonable opportunity to cure." [R 680 84.] Based on this finding, the court ordered that the third amended complaint was "[denied]" and granted Ms. Caulkett's request for attorney's fees. [R 683.] CitiMortgage moved the court for entry of a final order. [R 690 95.] The court granted CitiMortgage's motion and entered a final order of dismissal without leave to amend "based on failure of the condition precedent of sending a breach letter" on December 9, 2015. [R 709 10.] This appeal followed. {36668911;2} 9
SUMMARY OF THE ARGUMENT First, the dismissal of CitiMortgage's foreclosure action following a nonjury trial based on the court's requirement that Ms. Caulkett receive notice of default ignored the plain language of the mortgage and was improper. The court examined CitiMortgage's compliance with conditions precedent based on Ms. Caulkett's representation that she had not received the notice of default. Because receipt is not required under the terms of the mortgage, this is not the appropriate standard. Ms. Caulkett's receipt of the notice of default is not determinative for purposes of evaluating CitiMortgage's compliance with conditions precedent. Instead, the court should have limited the compliance inquiry to whether CitiMortgage had sent the default letter to Ms. Caulkett, for which there was adequate competent, substantial evidence to conclude occurred, satisfying CitiMortgage's obligation to provide notice of default. CitiMortgage substantially complied with the requirements of paragraph 22 by sending Ms. Caulkett written notice of default. Ms. Caulkett's later inability to reinstate the loan, months after such notice was provided, fails to establish prejudice sufficient to defeat a finding of substantial compliance by CitiMortgage and does not provide a basis to deny a final judgment of foreclosure. Any finding of prejudice with respect to compliance with conditions precedent must relate to the original notice of default not to subsequent opportunities to reinstate the loan. {36668911;2} 10
The alleged prejudice the court found was related to Ms. Caulkett's inability to reinstate the loan in April 2010, not to cure the default in November 2009. CitiMortgage's substantial compliance with conditions precedent must be evaluated, and any potential prejudice to Ms. Caulkett weighed, as of late 2009 when the notice of default was sent. Next, because the court's erroneous determination that CitiMortgage did not satisfy conditions precedent was the sole basis for denying final judgment of foreclosure, a finding that CitiMortgage did, in fact, fulfill its obligations with respect to sending Ms. Caulkett notice of the breach should entitle CitiMortgage to final judgment. CitiMortgage produced competent, substantial evidence of each element of its case standing, default, and compliance with conditions precedent, and final judgment of foreclosure should be entered in CitiMortgage's favor. {36668911;2} 11
ARGUMENT Standard of Review. A decision in a non-jury trial, based on findings of fact from disputed evidence, is reviewed on appeal for competent, substantial evidence. Wekiva Springs Reserve Homeowners v. Binns, 61 So. 3d 1190, 1191 (Fla. 5th DCA 2011); Craigside, LLC v. GDC View, LLC, 74 So. 3d 1087, 1089 (Fla. 1st DCA 2011); see also In re Estate of Sterile, 902 So. 2d 915, 922 (Fla. 2d DCA 2005) ("As a general rule, a decision in a nonjury case based on a finding of fact from disputed evidence is subject to the competent, substantial evidence standard of review on appeal because the trial judge is in the best position to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.") (internal quotations omitted). Argument. I. THE COURT ERRED IN FINDING CITIMORTGAGE DID NOT SATISFY CONDITIONS PRECEDENT TO FORECLOSURE. A. CitiMortgage Complied With Conditions Precedent. CitiMortgage's notice of default complied with paragraph 22 of Ms. Caulkett's mortgage. Substantial compliance is the appropriate standard. Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 14 (Fla. 2d DCA 2015); Vasilevskiy v. Wachovia Bank, Nat'l Ass'n, 171 So. 3d 192 (Fla. 5th DCA 2015); Bank of N.Y. Mellon v. Nunez, 180 So. 3d 160, 162 (Fla. 3d DCA 2015). A breach of condition {36668911;2} 12
precedent must be material, meaning one causing prejudice, to constitute a defense to a foreclosure action. Vasilevskiy, 171 So. 3d at 192 93. See also Green Tree, 177 So. 3d 7 at 14 ("when the content of a lender's notice letter is nearly equivalent to or varies in only immaterial respects from what the mortgage requires, the letter substantially complies"). i. The Notice Informed Ms. Caulkett Of Default. Paragraph 22 of the mortgage requires that "[t]he notice shall specify (a) the default...." [R 561.] CitiMortgage's notice of default informed Ms. Caulkett her mortgage loan was in default. The first line of the notice reads "THE ABOVE REFERENCED LOAN IS IN DEFAULT," and further explains "[p]ayments have not been made as required by the note and mortgage...." [R 573.] ii. The Letter Informed Ms. Caulkett of Her Right to Cure and the Deadline to Cure. Paragraph 22 of the mortgage further requires that "[t]he notice shall specify... (b) the action required to cure the default, [and] (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured...." [R 561.] CitiMortgage's notice of default adequately notified Ms. Caulkett of her right to cure the default. It read "[t]o cure the default you must pay the past due amounts of $1,776.85, including $31.87 in late charges and $0.00 in delinquency related expenses. We must receive your payment by 12/05/09 (or the next business {36668911;2} 13
day thereafter if 12/05/09 is a Saturday, Sunday, or Federal holiday). Any additional monthly payments and late charges that fall due by 12/05/09 must also be paid to bring your account current." [R 573.] The notice further provided a deadline to cure the default 30 days from the notice date of November 5, 2009 and required Ms. Caulkett to tender funds sufficient to cure on or before December 5, 2009. [Id.] The notice was deemed provided upon mailing to Ms. Caulkett at her address per mortgage paragraph 15, thereby providing the required 30 days for Ms. Caulkett to cure. iii. The Notice Informed Ms. Caulkett Of The Consequences Of Failing To Cure. Paragraph 22 of the mortgage also requires that "[t]he notice shall specify... (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property." [R 561.] CitiMortgage's notice of default stated "[f]ailure to cure the default by 12/05/09 may result in the acceleration of all sums due under the Security Instrument. This means the entire unpaid balance will become due. Also, your property may be sold in accordance with the terms of the Security Instrument and applicable law." [R 573.] CitiMortgage's notice of default adequately informed Ms. Caulkett of the consequences of her failure to cure. {36668911;2} 14
iv. The Notice Informed Ms. Caulkett Of Her Right To Defend. Paragraph 22 of the mortgage requires that "[t]he notice shall further inform Borrower... of the right to assert in the foreclosure proceeding the nonexistence of a default or any other defense of Borrower to acceleration and foreclosure." [R 561.] CitiMortgage's notice of default informed Ms. Caulkett that "[y]ou have the right to bring a court action or to assert in any foreclosure proceeding, the nonexistence of a default or any other defense you have to acceleration and the sale of the property." [R 573.] CitiMortgage's notice of default satisfied each element required under paragraph 22 of the mortgage and fulfilled the condition precedent to acceleration and foreclosure, as this Court's review of the notice can easily establish. See Fed. Nat'l Mortg. Ass'n v. Morton, Case No. 2D14-5165, 2016 WL 3265485 *2 (Fla. 2d DCA June 15, 2016) ("When such a comparison is all that is necessary to determine the question of substantial compliance, and there are no issues concerning the authenticity of the notice letter, we can perform that comparison on appeal as readily as a trial court could as an original matter."). B. Ms. Caulkett Is Unable To Show Prejudice. The court held "with respect to the conditions precedent, [CitiMortgage] failed to provide [Ms. Caulkett] with proper timely notice of the default and reasonable opportunity to cure. * * * The Court finds [Ms. Caulkett] did not {36668911;2} 15
receive the notice. The Court finds the presumption that [CitiMortgage] sent notice based upon the screenshot was overcome by the credible testimony of [Ms. Caulkett] that she did not receive the notice. * * * Therefore, the Court finds that [CitiMortgage] did not send this notice and did not provide thirty days to cure the default. * * * Ms. Caulkett was prejudiced because she was denied the opportunity to cure and she otherwise would have been able to do so." [R 682.] The court found Ms. Caulkett was prejudiced as a result of her inability to successfully reinstate the loan in April 2010. This ignores that the initial breach occurred in October 2009 and the evidence established the notice of default was mailed to Ms. Caulkett in November 2009 and required her to cure the default by December 5, 2009. With respect to notice and opportunity to cure required by paragraph 22, this notice satisfied the full extent of CitiMortgage's obligations under the mortgage. Despite the court's finding that "[CitiMortgage] did not provide any further proof that notice was sent" neither the mortgage nor the applicable case law establishes any such requirement. CitiMortgage produced evidence in the form of both business records and live testimony to conclusively establish the notice of default was sent. For the court to find otherwise is to essentially require CitiMortgage to provide proof of receipt and ignores the plain language of the mortgage. See, e.g., U.S. Bank Nat'l. Ass'n v. Laird, --- So. 3d ---, 2016 WL 3569898 (Fla. 5th DCA July 1, 2016) (finding {36668911;2} 16
testimony and business records of notice of default mailing adequately demonstrated compliance with conditions precedent, and noting "[t]he acceleration letter from the loan servicer that was admitted into evidence was dated January 18, 2009, was correctly addressed to [borrower's] address, and provided the requisite thirty days' notice under paragraph 22. * * * Essentially, the court determined that the evidence presented was not competent to establish that [mortgagee] mailed the January 18 letter.... We disagree."). The court's observation that the reinstatement opportunities afforded Ms. Caulkett did not comply with paragraph 22 because they provided fewer than 30 days for tender of payment also are misguided. Such offers of reinstatement were not attempts to comply with paragraph 22, as this was accomplished in November 2009. Paragraph 22 only requires the borrower be provided a 30 days to cure following notice of default and is silent with respect to reinstatement terms. For the court to hold any subsequent opportunities for Ms. Caulkett to reinstate to the same standard articulated in the mortgage to cure the default was to read into the contract rights and obligations that neither CitiMortgage nor Ms. Caulkett bargained for or agreed to. This should not have justified a finding of failure to satisfy conditions precedent. See, e.g., Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011) ("Under Florida law, contracts are construed in accordance with their plain language, as bargained for by the parties."). {36668911;2} 17
The court's finding of prejudice was premised on its determination that Ms. Caulkett was "denied the opportunity to cure" when she otherwise would have been able to do so. At trial, Ms. Caulkett admitted that, despite her alleged failure to receive the November 2009 notice of default, she did receive a December 2009 monthly statement from CitiMortgage which made clear that her mortgage was three months in arrears and she received a similar statement from CitiMortgage "every month." Ms. Caulkett admitted that as of December 2009 she was on notice she was three months in arrears, and yet she waited another four months before attempting to tender payment to CitiMortgage. To the extent the court found an evaluation of prejudice was indicated, despite CitiMortgage's compliance with the requirements of paragraph 22, such prejudice cannot be evaluated in April 2010. Ms. Caulkett's own delay in tendering reinstatement funds long after she admitted awareness of the default cannot result in a benefit to her. Cases evaluating substantial compliance with paragraph 22 do so based on an examination of the adequacy of the notice of default language not whether the notice of default was received. "Because paragraph twenty-two in substantial part governs the contents of a notice letter, the principal fact relevant to a determination of substantial compliance will ordinarily be the content of the notice letter at issue. For that reason, a comparison of the text of a notice letter to the requirements of paragraph twenty-two will often be all that is necessary to enable a court to {36668911;2} 18
determine whether the lender substantially complied with its requirements." Morton, 2016 WL 3265485 at *2 (Fla. 2d DCA June 15, 2016) (emphasis added). Here, CitiMortgage's compliance with conditions precedent was not evaluated against the language of the notice and its adherence to the requirements of paragraph 22, but only on whether it was received. This has the effect of elevating paragraph 22 above, and, in fact, ignoring, the language of paragraph 15 of the same mortgage. Ms. Caulkett admitted that, despite her awareness of the default, she made no effort to cure in the time period defined by the original notice of default. Her subsequent inability to tender a reinstatement payment within the period of time prescribed in later notifications from CitiMortgage's counsel does not represent prejudice related to CitiMortgage's compliance with providing her with notice of default and satisfaction of conditions precedent. The court's conflation of two events the original notice of default and opportunity to cure pursuant to paragraph 22 and subsequent offers to reinstatement the loan from CitiMortgage's counsel mischaracterizes the required finding of "prejudice" sufficient to defeat a showing of paragraph 22 compliance. Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1248 49 (Fla. 5th DCA 2012) (holding breach of condition precedent must be material, meaning one causing prejudice, to constitute defense to {36668911;2} 19
enforcement of contract) (emphasis added). With respect to conditions precedent, notice of default is all the mortgage requires. Ms. Caulkett did not challenge the language of the notice of default or claim that the contents of the notice of default admitted at trial was deficient. She merely argued she did not receive it. Her admission that she did not attempt to cure the default in late 2009, together with the evidence that CitiMortgage did, in fact, generate and mail the notice of default in November 2009, defeats any finding of prejudice sufficient to overcome CitiMortgage's substantial compliance with conditions precedent prior to acceleration of Ms. Caulkett's mortgage loan. C. Receipt Of The Notice Of Default Is Not Required. Paragraph 15 of the mortgage provides, in relevant part: "[a]ny notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means." [R 559.] In other words, when sent by first class mail, receipt is not required. The court's conclusion that CitiMortgage "did not send [the] notice" because Ms. Caulkett "did not receive the notice" ignores this plain language and establishes a heightened standard for compliance the mortgage does not contemplate. In Roman v. Wells Fargo Bank, this Court rejected the borrowers' claim that their failure to receive a notice of default was a material fact that should have {36668911;2} 20
prevented the entry of summary judgment in favor of Wells Fargo, noting "[b]ecause the express language of the mortgage only required that Wells Fargo mail notice, not that the Romans receive it, we reject the Romans' argument. Wells Fargo established by affidavit that it mailed notice to the Romans as required by the mortgage. That is the material fact." 143 So. 3d 489, 490 (5th DCA 2014); see also Rosario v. PHH Mortg. Corp., 148 So. 3d 154 (5th DCA 2014) (per curium). The notice provision in the Romans' mortgage is identical to that in Ms. Caulkett's. CitiMortgage established the notice of default was mailed by first class mail to what Ms. Caulkett admitted was her correct address. Ms. Lennox testified, based on her personal knowledge, training, and experience in CitiMortgage's policies and procedures for generating notices of default, that the notation "GENERAL DEMAND REG MAIL" only appears when a notice of default has been successfully mailed to the borrower. The imaged copy of the notice of default only appears once it has been sent to the borrower. The phrase "REG MAIL" indicates that the notice was not delivered by one of the alternate means that would potentially trigger the receipt requirement under paragraph 15. There was no record of any returned mail in CitiMortgage's business records, and Ms. Caulkett admitted she regularly received monthly statements at the address the notice of default was sent to both before and after the time period the notice of default was sent. {36668911;2} 21
Ms. Caulkett's receipt of the notice of default is not determinative and does not form a basis to conclude CitiMortgage failed to comply with conditions precedent prior to foreclosure. See Bank of America v. Nash, --- So. 3d ---, 2016 WL 2596015 *2 (Fla. 5th DCA May 6, 2016) (noting the borrower's claim the notice of default was not received was "meritless" and that "[t]he trial court's conclusion that [mortgagee] was required to establish proof of delivery in order to establish that it met all required conditions precedent to foreclosure was misplaced." Upon a finding that the mortgagee did mail the required notice, this Court observed "[t]he fact that the letter may not have been received is irrelevant." Id. Ms. Caulkett's identical claim should fare no better. II. FINAL JUDGMENT OF FORECLOSURE SHOULD BE ENTERED IN FAVOR OF CITIMORTGAGE BECAUSE IT PRESENTED COMPETENT, SUBSTANTIAL EVIDENCE TO SUPPORT FORECLOSURE. Not only must the final judgment be vacated, but the case should be remanded with directions for entry of a final judgment of foreclosure in favor of CitiMortgage. CitiMortgage proved each of the elements of its case: standing, default, and compliance with conditions precedent. See McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012) ("A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose."); Poinciana Hotel of Miami Beach, Inc. v. Kasden, 370 So. 2d 399, 400 (Fla. 3d DCA 1979) ("[T]he {36668911;2} 22
crucial element in any mortgage foreclosure proceeding to accelerate sums due under a note and underlying mortgage is an actual default."); Voght v. Galloway, 291 So. 2d 579, 581 (Fla. 1974) ("Where the mortgagee's right to foreclose is dependent upon a condition precedent, the complaint should distinctly aver the performance of such condition."). CitiMortgage presented competent, substantial evidence at trial to support final judgment of foreclosure in its favor, and the court found CitiMortgage "proved it was entitled to enforce the subject debt endorsed [sic] by a promissory note and secured by a mortgage and [CitiMortgage] proved that [Ms. Caulkett] defaulted in the payment of the mortgage." [V. 681.] CitiMortgage showed it had standing when the action commenced because it owned and held, through its interest in ABN AMRO, Inc., the note endorsed in blank. Section 673.3011, Florida Statutes, establishes who is entitled to enforce an instrument, including a promissory note. See 673.3011 & 673.1041, FLA. STAT. A party can enforce a promissory note if the party is either: (i) the holder of the negotiable instrument; or (ii) a non-holder in possession of the instrument who has the rights of the holder. Id. CitiMortgage's ownership and possession of the original note at the time the complaint was filed conclusively establishes its standing, and CitiMortgage provided undisputed testimony of those facts at trial. {36668911;2} 23
As holder of the note, CitiMortgage is entitled to foreclose the mortgage. Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 54 (Fla. 2d DCA 2007) (reversing dismissal of complaint for mortgage foreclosure and reestablishment of lost note where plaintiff alleged it was the owner and holder of the note and mortgage); Philogene v. ABN Amro Mortg. Grp., Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006) (affirming final summary judgment of foreclosure based on proof plaintiff held the note and mortgage); Stanley v. Wells Fargo Bank, 937 So. 2d at 708 09 (Fla. 5th DCA 2006) (affirming final summary judgment of foreclosure where Wells Fargo filed the original note and mortgage with the court); Perry v. Fairbanks Capital Corp., 888 So. 2d 725, 726 27 (Fla. 5th DCA 2004) (affirming final judgment of foreclosure where plaintiff filed the original note). CitiMortgage held the note when the complaint was filed because it possessed the original note indorsed in blank. See Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010) ("[P]ossession of the original note, indorsed in blank, was sufficient under Florida's Uniform Commercial Code to establish [plaintiff] was the lawful holder of the note, entitled to enforce its terms."); Harvey v. Deutsche Bank Nat'l Trust Co., 69 So. 3d 300, 304 (Fla. 4th DCA 2011) ("[B]ecause the note at issue is payable to AHMAI, and indorsed in blank, and because Deutsche possessed the original note and filed it with the circuit court, its standing may be established from its status as the note holder."). {36668911;2} 24
The pleadings and evidence support CitiMortgage's standing at case inception. The complaint alleged CitiMortgage is the "owner" of the Note. [R 43.] Ms. Lennox explained, and the certificate of merger evidenced, that CitiMortgage acquired ABN AMRO, Inc., the named endorsee of the original note, in September 2007 long before the filing of the complaint in June 2010. [Tr. 41; R 567 72.] CitiMortgage filed the original note indorsed in blank prior to trial, and the original note was admitted into evidence. [R 105 27.] CitiMortgage's ownership and possession of the original note indorsed in blank is sufficient to enforce the note. See Riggs, 36 So. 3d at 933; Harvey, 69 So. 3d at 304. CitiMortgage proved Ms. Caulkett's default and the amounts due and owing. [R 615 20.] Ms. Lennox authenticated a copy of the loan payment history and Ms. Caulkett's default. [R 577 614.] Ms. Lennox explained how CitiMortgage creates and maintains electronic records related to the payment and disbursement history for the subject loan. [Tr. 69; 70.] The payment history reflects Ms. Caulkett's loan is in default and is due for October 1, 2009. [Tr. 76 77.] The payment history was admitted into evidence over objection. [Tr. 76.] CitiMortgage established satisfaction of all conditions precedent to foreclosure. Ms. Lennox testified regarding the November 5, 2009 notice of default addressed to Ms. Caulkett at her mailing address. [Tr. 44 45.] Ms. Lennox explained the process by which the notice of default is generated and mailed and {36668911;2} 25
CitiMortgage's records show the notice was mailed to Ms. Caulkett on the day it was dated. [Tr. 66.] Ms. Lennox testified the default was not cured by the borrower. [Tr. 76 77.] CitiMortgage produced competent, substantial evidence of each element of its case standing, default, and compliance with conditions precedent. The final judgment must be vacated, and the case should be remanded with directions for entry of a final judgment of foreclosure in favor of CitiMortgage. CONCLUSION The trial court imposed a requirement proof of receipt of a notice of default that is contrary to Florida law. CitiMortgage clearly demonstrated it mailed the notice of default; it did not have to demonstrate Ms. Caulkett received it. CitiMortgage requests this Court to remand with directions the dismissal be vacated and judgment be entered in favor of CitiMortgage. {36668911;2} 26
Respectfully submitted, /s/ Nancy M. Wallace NANCY M. WALLACE (65897) nancy.wallace@akerman.com elisa.miller@akerman.com michele.rowe@akerman.com Akerman LLP 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Telephone: (850) 224-9634 Telecopier: (850) 222-0103 WILLIAM P. HELLER (987263) william.heller@akerman.com lorraine.corsaro@akerman.com Akerman LLP Las Olas Centre II, Suite 1600 350 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Telephone: (954) 759-8945 Telecopier: (954) 463-2224 Attorneys for Appellant PAUL W. ETTORI (84150) paul.ettori@akerman.com marilyn.cancel@akerman.com Akerman LLP 420 S. Orange Avenue, Suite 1200 Orlando, FL 32801-4904 Telephone: (407) 419-8552 Telecopier: (407) 254-3705 {36668911;2} 27
CERTIFICATE OF SERVICE I HEREBY CERTIFY on this 3 rd day of August, 2016 that a true and correct copy of the foregoing has been electronically submitted to the Fifth District Court of Appeal's edca and further certify that a true and correct copy of the foregoing was furnished to all parties listed below. SERVICE BY E-MAIL Donato J. Rinaldi, Esq. Rinaldi Law, P.A. 9310 Old Kings Road S., Suite 302 Jacksonville, FL 32257 e-service@rinaldilawpa.com (Attorney for Appellee) Amy L. Sumacewski, Esq. Robertson, Anschutz & Schneid, P.L. 6409 Congress Avenue, Suite 100 Boca Raton, Florida 33487 mail@rasflaw.com (Trial Attorney for Appellant) Vance, Lotane & Bookhardt, P.A. 1980 Michigan Avenue Cocoa, FL 32922 service@vancelotane.com (Attorney for Defendant below, Space Coast Credit Union) SERVICE BY U.S. MAIL Magnolia Lake Development Homeowners Association, Inc. c/o Charlotte Rose as R.A. 1127 White Oak Circle Melbourne, FL 32934 (Defendant Below) /s/ Nancy M. Wallace NANCY M. WALLACE {36668911;2} 28
CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the font used in this brief is the Times New Roman 14-point font and that the brief complies with the font requirements of Rule 9.210(a)(2), Florida Rules of Appellate Procedure. /s/ Nancy M. Wallace NANCY M. WALLACE {36668911;2} 29