         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


PNC BANK NATIONAL ASSOCIATION,

             Appellant,

 v.                                                    Case No. 5D16-3341

COURTNEY ROBERTS AND CAROL ROBERTS,

             Appellees.

________________________________/

Opinion filed April 27, 2018

Appeal from the Circuit Court
for Brevard County,
Lisa Davidson, Judge.

William L. Grimsley, N. Mark New, II,
Kimberly Held Israel and Gabriel M.
Hartsell,    of    McGlinchey Stafford,
Jacksonville, for Appellant.

Michael A. Saracco, of Saracco Law,
Cocoa, for Appellees.


PER CURIAM.

      PNC Bank National Association (Bank) appeals the involuntary dismissal of its

foreclosure complaint against Courtney and Carol Roberts (Borrowers), after the trial

court found that Bank failed to produce competent, substantial evidence showing it

complied with the condition precedent to acceleration and foreclosure in paragraph 22 of

the mortgage. Paragraph 22 required Bank to send Borrowers a notice informing them
that the loan was in default at least thirty days before accelerating the loan. Because

Borrowers' affirmative defense that the acceleration letters were not mailed was waived,

and Bank offered competent, substantial evidence that the acceleration letters were

mailed, we reverse.

       On August 23, 2002, Borrowers executed a promissory note in the amount of

$509,900 in favor of Fidelity Federal Bank & Trust1 to fund construction of a new home.

The note was secured by a mortgage on the property in favor of Fidelity Federal Bank &

Trust. Borrowers later obtained an additional $284,100 in loans from National City

Mortgage Co., after which the parties agreed to a mortgage modification agreement

increasing the principal due on the note and mortgage to $794,000.

       In 2009, Borrowers defaulted on the loan. As a result, on January 7, 2010, Bank

sent Borrowers two acceleration letters2 stating that the loan was in default because

Borrowers had missed the payment due on September 1, 2009, and all subsequent

payments. The letters gave Borrowers until February 6, 2010, to cure the default. When

Borrowers failed to cure the default, Bank filed its complaint to foreclose the mortgage.

       In their amended answer, Borrowers generally denied all of the allegations in the

foreclosure complaint and specifically denied that Bank complied with the conditions

precedent to accelerate the loan. They raised twenty-seven affirmative defenses, the

fourth of which stated:



       1
       On April 14, 2007, Fidelity Federal Bank & Trust merged with National City
Mortgage Co. On October 1, 2008, National City Mortgage Co. merged with National City
Bank. National City Bank was acquired by Bank on November 6, 2009.
       2
       One acceleration letter was addressed to Courtney Roberts and the other was
addressed to Carol Roberts.



                                            2
              As a fourth affirmative defense, defendant states that plaintiffs
              failed to perform conditions precedent to the initiation of this
              action and or for acceleration of payment allegedly due. As a
              result, defendant has been denied a good faith opportunity,
              pursuant to the mortgage and the servicing obligations of the
              plaintiff to avoid acceleration and this foreclosure. More
              specifically, Plaintiff has failed to perform conditions
              precedent by failing to comply with paragraph 22 of the
              subject mortgage and failing to comply with the notice
              requirements in the mortgage.

       Thereafter, Bank sought to obtain more information about Borrowers' fourth

affirmative defense through an interrogatory that asked Borrowers to "state all facts that

support [y]our fourth affirmative defense that there has been a failure of conditions

precedent." Borrowers responded to the interrogatory by stating under oath, "[t]he note

was cancelled and no conditions precedent exist." Another interrogatory requested the

factual basis for all of the twenty-seven affirmative defenses. Borrowers responded with

only the short notation, "[p]aid + cancelled note."

       Bank argues that Borrowers waived their fourth affirmative defense with these

interrogatory responses. "A litigant may abandon any defense he elects to abandon, and

the defendant in a civil suit may waive any right he chooses, generally simply by never

asserting it." State v. Fla. Nat'l Props., Inc., 338 So. 2d 13, 19 (Fla. 1976) (Hatchett, J.,

concurring, in part, and dissenting, in part). For instance, affirmative defenses can be

waived if they are not listed in the pretrial order or through a statement to the jury during

closing arguments. Cooke v. Ins. Co. of N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA

1995); Vendola v. S. Bell Tel. & Tel. Co., 474 So. 2d 275, 279–80 (Fla. 4th DCA 1985).

Moreover, while there is no Florida case law on waiver of defenses through interrogatory

responses, other states that have addressed the issue have found that interrogatory

responses made under oath are binding and can waive a defense. See Young v. Guild,



                                             3
7 So. 3d 251, 261–62 (Miss. 2009) ("Young's denial in her discovery response was

binding on her; she waived her right to an apportionment instruction."); Coho Res., Inc. v.

McCarthy, 829 So. 2d 1, 24 (Miss. 2002) (holding that failure to identify other tortfeasors

in response to interrogatory requesting identity of any parties defendant believed caused

the accident waived right to apportion fault to another tortfeasor); Allstate Indem. Co. v.

Brown, 696 N.E.2d 92, 97 (Ind. Ct. App. 1998) (finding waiver of issue on "consent to

sue" clause in insurance contract because insurer's "complaints and its responses to

interrogatories gave [plaintiff] no reason to believe that he had failed to comply with the

policy terms" (citing Indiana Ins. Co. v. Noble, 265 N.E.2d 419, 435 (Ind. App. 1970))).

We see no reason to hold differently here and conclude Borrowers' assertion that "no

conditions precedent exist" in their answer to Bank’s interrogatory waived their fourth

affirmative defense. Thus, the trial court should not have considered it.

       Waiver notwithstanding, Bank presented competent, substantial evidence at trial

that it complied with paragraph 22 of the mortgage. Paragraph 22 requires Bank to send

Borrowers a written acceleration letter informing them "that the loan is in default and the

debt is being accelerated, how to cure the default by paying a specified amount, providing

at least thirty days within which to cure, and other important information." Figueroa v.

Fed. Nat'l Mortg. Ass'n, 180 So. 3d 1110, 1116 (Fla. 5th DCA 2015). Under paragraph

15 of the mortgage, the acceleration letter must be sent by first-class mail or be actually

delivered to Borrowers at the property address or, if designated, their notice address. Id.

A rebuttable presumption of receipt arises if it is sent by first-class mail. See Progressive

Express Ins. Co. v. Camillo, 80 So. 3d 394, 402 (Fla. 4th DCA 2012) ("Proof of mailing of




                                             4
7 So. 3d 251, 261–62 (Miss. 2009) ("Young's denial in her discovery response was

binding on her; she waived her right to an apportionment instruction."); Coho Res., Inc. v.

McCarthy, 829 So. 2d 1, 24 (Miss. 2002) (holding that failure to identify other tortfeasors

in response to interrogatory requesting identity of any parties defendant believed caused

the accident waived right to apportion fault to another tortfeasor); Allstate Indem. Co. v.

Brown, 696 N.E.2d 92, 97 (Ind. Ct. App. 1998) (finding waiver of issue on "consent to

sue" clause in insurance contract because insurer's "complaints and its responses to

interrogatories gave [plaintiff] no reason to believe that he had failed to comply with the

policy terms" (citing Indiana Ins. Co. v. Noble, 265 N.E.2d 419, 435 (Ind. App. 1970))).

We see no reason to hold differently here and conclude Borrowers' assertion that "no

conditions precedent exist" in their answer to Bank’s interrogatory waived their fourth

affirmative defense. Thus, the trial court should not have considered it.

       Waiver notwithstanding, Bank presented competent, substantial evidence at trial

that it complied with paragraph 22 of the mortgage. Paragraph 22 requires Bank to send

Borrowers a written acceleration letter informing them "that the loan is in default and the

debt is being accelerated, how to cure the default by paying a specified amount, providing

at least thirty days within which to cure, and other important information." Figueroa v.

Fed. Nat'l Mortg. Ass'n, 180 So. 3d 1110, 1116 (Fla. 5th DCA 2015). Under paragraph

15 of the mortgage, the acceleration letter must be sent by first-class mail or be actually

delivered to Borrowers at the property address or, if designated, their notice address. Id.

A rebuttable presumption of receipt arises if it is sent by first-class mail. See Progressive

Express Ins. Co. v. Camillo, 80 So. 3d 394, 402 (Fla. 4th DCA 2012) ("Proof of mailing of




                                             4
       While the dates on the acceleration letters are evidence only as to when the letters

were drafted and do not show whether or when they were sent, see Allen, 216 So. 3d at

687–88 (citing Burt, 138 So. 3d at 1195), Thomas's personal knowledge of Bank's and

Venture’s routine business practices and policies for acceleration letters mailed in 2010,

when the pertinent acceleration letters were mailed, coupled with the admission of the

acceleration letters, constitutes competent, substantial evidence that the acceleration

letters were actually mailed to Borrowers in this case.4 § 90.406, Fla. Stat. (2009); Brown

v. Giffen Indus., Inc., 281 So. 2d 897, 899–900 (Fla. 1973); CitiBank, N.A. for WAMU

Series 2007-HE2 Tr. v. Manning, 221 So. 3d 677, 681-82 (Fla. 4th DCA 2017); Allen, 216

So. 3d at 688 (citing CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA

2016)); State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992, 1007 (Fla. 4th DCA 2001)

(citing Best Meridian Ins. Co. v. Tuaty, 752 So. 2d 733, 735 (Fla. 3d DCA 2000)). The

trial court erred in concluding otherwise.

       Accordingly, we reverse the final judgment entered in favor of Borrowers and

remand for entry of final judgment in favor of Bank.

       REVERSED and REMANDED.

SAWAYA, BERGER and WALLIS, JJ., concur.




       4Additionally, Borrowers can show no prejudice because there is no evidence they
attempted to cure the default at any point. See Gorel v. Bank of N.Y. Mellon, 165 So. 3d
44, 47 (Fla. 5th DCA 2015) (citing Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242,
1248–49 (Fla. 5th DCA 2012)).


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