DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MTGLQ INVESTORS, L.P.,

Appellant,

v.

BARBARA NINA DAVIS,

Appellee.

No. 4D18-1618

[March 20, 2019]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Martin County; William L. Roby, Judge; L.T. Case No. 10000301CAAXMX.

Brian A. Wahl of Bradley Arant Boult Cummings LLP, Birmingham, 

Alabama, for appellant.

John J. Anastasio, Stuart, for appellee.

PER CURIAM.

MTGLQ Investors, L.P. (“the Bank”) appeals a final judgment dismissing 

its foreclosure complaint, entered in favor of Barbara Nina Davis (“the 

Homeowner”). We agree with the Bank that the trial court erred in finding 

that it failed to substantially comply with conditions precedent to bringing 

a foreclosure suit. We reverse and remand for further proceedings.

The mortgage contract at issue requires notice of default before a 

foreclosure action may be brought1 and further provides in paragraph 15

1 Paragraph 20 provides in relevant part:

Neither Borrower nor Lender may commence, join, or be joined to 

any judicial action . . . that arises from . . . this Security Instrument 

or that alleges that the other party has breached any provision of, 

or any duty owed by reason of, this Security Instrument, until such 

Borrower or Lender has notified the other party (with such notice 

given in compliance with the requirements of section 15) of such 

alleged breach and afforded the other party hereto a reasonable 

period after the giving of such notice to take corrective action. . . . 
2

that “[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.” The lender sent a default notice to the Homeowner in 

December 2009. The letter indicates that it was sent via certified mail with 

a return receipt requested. The corresponding return receipt indicates the 

letter was sent via first-class mail with return receipt requested and was 

returned to the lender as “unclaimed” and “unable to forward.”

The Bank brought a complaint for foreclosure in February 2010. The 

Homeowner asserted in her responsive pleading that the Bank did not 

serve and she did not receive a presuit notice “that was either served by 

regular mail or actually received if delivered by other means, including but 

not limited to certified mail, certified mail return receipt requested . . . .” 

At trial, the Bank admitted a copy of the default notice along with the 

postmark indicating “First-Class Mail” and the return receipt indicating 

that the letter was returned to the sender and unclaimed by the intended 

recipient. At the close of evidence, the Homeowner moved to dismiss the 

action for the Bank’s failure to comply with presuit notice requirements. 

Specifically, she contended that the notice was sent by certified mail, not 

first class mail and therefore, the Bank had to prove actual delivery, which 

it did not. The Bank responded that certified mail is a type of first class 

mail, and that the evidence reflected the letter was designated first class 

mail.

The trial court stated that it did not believe certified mail was the same 

thing as first class mail, and it found that because the letter was returned 

as undelivered, the Bank did not establish compliance with the condition 

of presuit notice of default. The trial court dismissed the case.

We hold that the trial court erred in dismissing the case based on 

failure to satisfy the presuit notice requirement. The return receipt 

indicates on its face that the default notice was sent by first class mail. 

Thus, under paragraph 15 of the mortgage, the notice was “deemed to have 

been given to Borrower.” 

An opinion of the Ohio Court of Appeals contains similar facts and is 

The notice of acceleration and opportunity to cure given to Borrower 

pursuant to section 22 and the notice of acceleration given to 

Borrower pursuant to Section 18 shall be deemed to satisfy the 

notice and opportunity to take corrective action provisions of this 

Section 20. 
3

instructive. In Ocwen Loan Servicing, LLC v. Malish, 109 N.E.3d 659, 668 

(Ohio Ct. App. 2018), the mortgage contract contained the same language 

that is contained in the subject mortgage’s paragraph 15, relied on by the 

Homeowner. The letter was sent via certified mail and was unclaimed. Id. 

The court declined to find that the conditions precedent were not satisfied 

merely because the notice was sent via certified mail and reasoned:

[T]he evidence here shows that certified mail is first-class 

mail. The Malishes’ tracking-information printout they 

submitted from the USPS website shows that certified mail is 

simply enhanced first-class mail. Under the heading “Postal 

Product” is stated “First-Class Mail.” And beside this under 

the heading “Features” is stated “Certified Mail.” This 

indicates that certified mail is basically a service that can be 

added-on to first-class mail. It stands to reason that a sender 

purchases this service if the sender wants to ensure that the 

first-class mail gets to the recipient. Therefore, because 

Ocwen sent the notice of default to the Malishes by first-class 

mail, the notice must be “deemed to have been given” when it 

was sent on August 14, 2015.

Id. at 668-69; see also Md. State Bd. of Nursing v. Sesay, 121 A.3d 140, 

144 n.3 (Md. Ct. Spec. App. 2015) (“Certified mail . . . is an extra service 

that a mail sender may, by paying extra, add to first-class mail.”); Ming 

Kuo Yang v. City of Wyoming, 31 F. Supp. 3d 925, 932 n.6 (W.D. Mich. 

2014), aff’d, Ming Kuo Yang v. City of Wyoming, 793 F.3d 599 (6th Cir. 

2015) (noting that “[a]ccording to the United States Postal Service, certified 

mail is an extra service option that may be combined with first class or 

priority mail. www.usps.com” and holding that “[t]here is nothing in the 

Ordinance [permitting notice by first class service] to suggest that 

combining first-class mail with the added certified mail service does not 

satisfy the Ordinance’s requirement that notice be sent by first-class 

mail”).

The Homeowner argues that the use of the word “deemed” in paragraph 

15 is ambiguous. But our courts have held that such language is not 

ambiguous. In Best Meridian Insurance Co. v. Tuaty, 752 So. 2d 733, 735 

(Fla. 3d DCA 2000), the court addressed a similar provision that stated, 

“All notices or reports . . . will be deemed delivered to the persons entitled 

to notices or reports when we mail them.” The Third District concluded:

Under this type of notice provision, notice to the insured is 

deemed to be complete upon mailing, even if the insured does 

not actually receive the notice. See Service Fire Ins. Co. v. 
4

Markey, 83 So. 2d 855, 856 (Fla. 1955); Bradley v. Assocs. 

Discount Corp., 58 So. 2d 857, 859 (Fla. 1952); Burgos v. 

Independent Fire Ins. Co., 371 So. 2d 539, 541 (Fla. 3d DCA 

1979); Allstate Ins. Co. v. Dougherty, 197 So. 2d 563, 566 (Fla. 

3d DCA 1967); Aetna Cas. & Sur. Co. v. Simpson, 128 So. 2d 

420, 424 (Fla. 1st DCA 1961).

The insurer need only establish that the required notices 

were actually mailed. The insurer need not establish that the 

insured actually received the notice.

Id. 

Because the evidence in the instant case showed that the default notice 

was mailed via first class mail and there is nothing in the mortgage to 

suggest that adding a return receipt defeats first class mail status, the 

default notice “shall be deemed to have been given to Borrower when 

mailed” pursuant to the terms of the mortgage. Accordingly, the trial court 

erred in dismissing the case based on its determination that the Bank 

failed to comply with conditions precedent to bringing suit.

Reversed and remanded for further proceedings.

GERBER, C.J., CIKLIN and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.