       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

         GINO ALESSIO, a/k/a GINO DAVIDE ALESSIO, and
        FERNANDA ALESSIO, a/k/a FERNANDA LALIA CURY,
                          Appellants,

                                     v.

                    OCWEN LOAN SERVICING, LLC,
                            Appellee.

                              No. 4D18-793

                              [May 1, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    David    E.    French,    Judge;   L.T.    Case    No.
502009CA035115AJ.

  Kendrick Almaguer and Natalie M. Eusebe of The Ticktin Law Group,
Deerfield Beach, for appellants.

  James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables, for
appellee.

WARNER, J.

   Appellants challenge a final judgment of foreclosure. They raise several
issues, one of which requires reversal. While the trial court concluded that
through witness testimony appellee had established its compliance with
the provisions of the mortgage that required notice of default to have been
mailed to the appellant borrowers prior to acceleration, we disagree that
the proof was adequate. In Torres v. Deutsche Bank National Trust Co.,
256 So. 3d 903, 905 (Fla. 4th DCA 2018), we explained that where witness
testimony is used to prove mailing, the witness must have personal
knowledge of the business’s general practice in mailing letters. As there
was no testimony with respect to personal knowledge of the practices of
the entity which allegedly mailed the letter, the evidence was insufficient
to prove that appellee complied with the condition precedent. We reverse.

  Appellants executed a note and mortgage to IndyMac Bank, F.S.B., in
2007. In 2009, OneWest Bank, F.S.B., brought an action to foreclose the
mortgage, alleging that it was the holder of the note and servicer for the
owner of the note, Federal National Mortgage Association. Attached to the
complaint was a copy of the promissory note with a blank endorsement
from IndyMac. Appellants answered with various affirmative defenses,
including OneWest’s failure to send a notice of default pursuant to
Paragraph 22 of the mortgage, a condition precedent to foreclosure.
During the proceedings, Ocwen was substituted as the party plaintiff for
OneWest, as it had become the servicer of the loan.

   The case proceeded to trial. A senior loan analyst for Ocwen testified.
Prior to her employment with Ocwen, which began in 2014, she was
employed with OneWest as a default litigation specialist from 2012-2013.
The analyst described Ocwen’s boarding process, and through her
testimony, the note, mortgage, and assignments of mortgage (from
IndyMac to One West, and then to Ocwen) were admitted, as well as the
loan payment history.

    With respect to the notice of default, required by Paragraph 22 of the
mortgage, appellee sought to admit the notice that was purportedly sent
to the appellants in July 2009. The notice stated that it was from IndyMac
Mortgage Services, a division of OneWest. The analyst identified the notice
as being maintained in Ocwen’s system of records. The trial court
admitted the notice as a business record of Ocwen, over the objection of
appellants. Appellee’s witness also testified that there was no indication
from Ocwen’s records that the letter was ever returned. During cross-
examination, the analyst testified that IndyMac Mortgage Services was a
division of OneWest Bank. As to the notice, she testified that she did not
have any personal involvement in sending default letters, but OneWest did
not utilize a vendor or third party to send out its letters. She had not
observed the sending of breach letters by IndyMac Bank, nor was she ever
employed by it or had access to its policies and procedures. Ocwen was
not involved in sending the default letter to appellants. Appellee’s witness
did testify that as part of her job description at OneWest, she was trained
on how to determine whether a default letter was actually mailed.
However, she never described the mail procedure at either IndyMac,
OneWest, or Ocwen.

   Appellants moved for involuntary dismissal at the end of appellee’s case
on two grounds, including the lack of evidence that the default letter was
actually mailed. The letter itself did not contain any proof that it was
mailed, and there was no evidence to establish the regular business
practices of IndyMac. Although the letter was boarded, there was no
return receipt or mail log showing that it was mailed. The witness did not
have personal knowledge of IndyMac’s mailing practices; thus, there was
no evidence that the lender complied with the condition precedent of

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providing notice of the loan’s acceleration under Paragraph 22 of the
mortgage.

   Counsel for Ocwen responded that the witness testified that she was
previously employed with OneWest, was familiar with its mailing
procedures, and knew how to determine whether documents were mailed
by OneWest based on its business records. Based on the witness’s review,
the notice was sent. The letter was sent by IndyMac, which was a division
of OneWest. The court noted that the letter identified IndyMac as a
division of OneWest, and the analyst used to be employed with OneWest
and understood the nature of its mailing procedures. It therefore denied
the motion for involuntary dismissal.

    Appellant Gino Alessio testified that he had never received the default
letter. Following closing arguments, the court found that appellee had
proved its case and entered final judgment of foreclosure. This appeal
followed.

   This Court reviews de novo the denial of a motion for involuntary
dismissal. Torres v. Deutsche Bank Nat’l Tr. Co., 256 So. 3d 903, 905 (Fla.
4th DCA 2018). There must be competent substantial evidence that the
lender complied with the conditions precedent to foreclosure under the
terms of the mortgage, including the requirement that the notice of default
was actually sent to the borrowers. See PNC Bank Nat’l Ass’n v. Roberts,
246 So. 3d 482, 485 (Fla. 5th DCA 2018).

   Paragraph 22 of the mortgage requires that the lender give the borrower
thirty days’ notice to cure a default prior to acceleration of the amount
due. Paragraph 15 provides that notices to the borrower “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.”
Appellants contend that the evidence was insufficient to prove that the
notice was mailed to them.

   After the final judgment in this case, this court decided Torres v.
Deutsche Bank National Trust Co., 256 So. 3d 903 (Fla. 4th DCA 2018).
There, we discussed the requirement for a lender to present sufficient
evidence that it actually mailed the default letter to the borrower:

      Where there are conditions precedent to filing the foreclosure
      suit, a bank must prove that it has substantially complied
      with them. Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923,
      925 (Fla. 4th DCA 2016). Along with the note, mortgage, and
      evidence regarding the outstanding debt on the loan, the

                                    3
      default or acceleration letter must be introduced to
      demonstrate entitlement to foreclosure. Liberty Home Equity
      Sols., Inc. v. Raulston, 206 So. 3d 58, 60 (Fla. 4th DCA 2016).
      In addition to introducing the letter, the bank must also
      present competent, substantial evidence that the letter was
      actually mailed. Ensler v. Aurora Loan Servs., LLC, 178 So. 3d
      95, 97 (Fla. 4th DCA 2015).

      Evidence that a document was drafted is insufficient, standing
      alone, to establish that it was in fact mailed. See Burt v.
      Hudson & Keyse, LLC, 138 So. 3d 1193, 1195 (Fla. 5th DCA
      2014). Rather, the “mailing must be proven by producing
      additional evidence such as proof of regular business
      practices, an affidavit swearing that the letter was mailed, or
      a return receipt.” CitiBank, N.A. for WAMU Series 2007-HE2
      Tr. v. Manning, 221 So. 3d 677, 681 (Fla. 4th DCA 2017)
      (quoting Allen v. Wilmington Tr., N.A., 216 So. 3d 685, 688 (Fla.
      2d DCA 2017)).

      If the evidence comes by way of witness testimony, “the
      witness must have personal knowledge of the company's
      general practice in mailing letters.” Allen, 216 So. 3d at 688
      (citing CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192
      (Fla. 5th DCA 2016)); accord Spencer v. Ditech Fin., LLC, 242
      So. 3d 1189, 1191 (Fla. 2d DCA 2018). Mere reliance on the
      boarding process to prove that the notice letter was mailed is
      insufficient. See Allen, 216 So. 3d at 687.

Id. at 905. In this case, there was no proof of regular business practices
or documents admitted to show that the document was actually mailed.
The court originally admitted the notice as a business record of Ocwen,
but as noted in Torres, reliance on the boarding process to prove that the
notice was mailed is insufficient. The analyst testified that she had been
taught by OneWest to determine whether a default letter was mailed, but
she never described that process. As she began working for OneWest in
2012, she did not testify that the process used by IndyMac Mortgage
Services in 2009 (when the letter allegedly was sent) was the same process
used by OneWest when she commenced work for them three years later.
In other words, she had no personal knowledge of the company’s general
practice in mailing letters as it existed in 2009. In fact, there was no
evidence presented of any process of mailing letters of any of the entities
involved. Compare with Roberts, 246 So. 3d at 486 (finding evidence of the
witness’s personal knowledge of the routine business practice of the Bank
and its vendor regarding the mailing of letters was sufficient to prove

                                     4
mailing where the witness explained that the Bank ordered its letters from
the outsourcing vendor, which printed, folded, placed them in window
envelopes, sealed them, affixed postage and mailed them first class; the
witness also testified that the vendor then provided a report to the Bank
showing that the letter was mailed). Thus, there was insufficient evidence
that the notice was mailed, and the trial court erred in denying the motion
for involuntary dismissal. See Torres.

  For the foregoing reasons, we reverse the final judgment of foreclosure
and remand for dismissal of the action.

GROSS and FORST, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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