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October 25, 2022

Kelley Kronenberg Defeats Defendants Motion For Involuntary Dismissal, Securing Final Judgment Of Foreclosure For Plaintiff

Kelley Kronenberg Attorneys, Jason Silver, and Gary Sonnenfeld represented the plaintiff in this residential foreclosure matter, in which they secured favorable rulings for the loan servicer, first by establishing Plaintiff’s case in chief by a preponderance of the evidence; then, by overcoming Defendant’s affirmative defenses, as expressed in its post-trial Motion to Dismiss.

Plaintiff initiated a foreclosure action following a default in 2019. After years of litigation, the case ultimately proceeded to a non-jury trial. In response to the Complaint, Defendant denied Plaintiff’s allegation that all conditions precedent had been satisfied and raised an affirmative defense that Plaintiff failed to satisfy the condition precedent of mailing the default notice. Through counsel, our client testified the loan servicer’s demand letters are generated by a third-party vendor after receiving a data file containing the data needed to generate same. He explained the third-party vendor then extracts the data file for each loan and places it into a template created and provided by the loan servicer. He went on to state the letters are verified for accuracy and placed in the mail by the third-party vendor; the vendor then provides the servicer with an electronic file containing an image of the letter that was mailed.  

After Plaintiff’s case-in-chief was completed, Defendants proceeded on a Motion for Involuntary Dismissal premised on the allegation that Plaintiff failed to comply with the condition precedent requiring mailing of the default notice. Specifically, Defendant averred Plaintiff’s only witness, the corporate representative for the loan servicer, lacked sufficient personal knowledge of the policies and procedures of the third-party vendor charged with mailing the notice. The Court deferred ruling on the motion pending the parties’ submission of a written argument addressing whether the witness was familiar enough with the policies and procedures of the third-party vendor to testify that the requisite letter was sent. 

In its submission, Defendant relied primarily on Knight v. GTE Fed. Credit Union, 310 So.3d 959 (Fla. 2d DCA 2018), a case wherein the servicer utilized a third-party vendor to complete the mailing process; and in which the Court ruled the log generated by the loan servicer reflecting actions taken by the third-party vendor was inadmissible under the business records hearsay exception. On behalf of the plaintiff, Jason Vanslette asserted the Court should follow Deutsche Bank Tr. Co. Americas as Tr. For Residential Accredit Loans, Inc. v. Harris, decided by the Fourth DCA in 2019. In Harris, the witness testified to the loan servicer’s procedure for creating the subject letter and having it sent, but the witness could not recall the name of the vendor utilized, nor was he familiar with the vendor’s policies and procedures. The Fourth District held knowledge of the third-party vendor’s mailing practices was not required to establish the letter had been sent; rather, it was sufficient that the witness was able to testify that the servicer created the letter and sent it to the third-party vendor to print out and send, after which the servicer received confirmation of sending from the vendor and entered a note reflecting the letter had been mailed.  

Finding little to differentiate Harris from the case at bar, the judge ruled Plaintiff presented sufficient evidence to make a prima facie showing that the default letter was mailed to the defendant prior to the filing of the foreclosure action. Based on same, the judge denied Defendant’s Motion for Involuntary Dismissal. Additionally, the court indicated that each and every other element of Plaintiff’s case had been established by a preponderance of the evidence; and, as such, a separate Final Judgment of Foreclosure would be entered.