RUSH VITALIY, A/K/A RUSH VITALY, APPELLANT,
v.
WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE POOLING AND SERVICING AGREEMENT DATED AS OF NOVEMBER 1 2004 ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2004-WHQ2, JOULIA VITALIY AND ARGENT MORTGAGE CO, APPELLEES.
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Florida appellate court reversed foreclosure judgment because lender failed to prove it actually mailed the required default notice letter to borrower, only that it was prepared.
A lender must prove actual mailing of a default notice letter required by the mortgage, not merely that the letter was prepared and addressed.
[1] A mortgagee seeking foreclosure must prove actual mailing of a default notice letter required by the mortgage, not merely that the letter was prepared and addressed to th…
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Join FLexlaw to unlock all legal intelligence“At best, Appellee's evidence proved only that Appellee prepared a default letter addressed to Appellant; however, there was no proof that the default letter was actually mailed.”
Court's analysis of why lender failed to meet its burden of proof regarding the default notice requirement.
Wells Fargo sought to foreclose on Rush Vitaliy's mortgage. Vitaliy alleged Wells Fargo failed to provide the notice of default letter required by par…
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We reverse the final judgment of foreclosure entered in favor of Appellee, Wells Fargo Bank, N.A., against Appellant, Rush Vitaliy. In his answer to Appellee's foreclosure complaint, Appellant alleged that Appellee failed to provide him with the notice of default letter required by paragraph 22 of the mortgage. At trial, Appellee attempted to prove compliance with paragraph 22; however, the court sustained Appellant's objection that the proffered evidence was hearsay. At the conclusion of Appellee's case, Appellant moved for an involuntary dismissal based on Appellee's failure to prove that it actually mailed a default letter to Appellant. The trial court denied Appellant's motion and entered final judgment in favor of Appellee.
At best, Appellee's evidence proved only that Appellee prepared a default letter addressed to Appellant; however, there was no proof that the default letter was actually mailed. Thus, Appellee failed to prove that it complied with paragraph 22 of the mortgage. See Madl v. Wells Fargo Bank, N.A. , 244 So.3d 1134, 1137 (Fla. 5th DCA 2017). Accordingly, the trial court erred by denying Appellant's motion for involuntary dismissal and for entering judgment in favor of Appellee. We reverse the final judgment and remand to the trial court with instructions to enter an order involuntarily dismissing the case.
REVERSED AND REMANDED.
COHEN, C.J., EDWARDS and GROSSHANS, JJ., concur.
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- Madl v. Wells Fargo Bank, 244 So. 3d 1134 (Fla. 5th DCA 2017)