### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

SAMUEL TORRES and MELISSA RENALDO

, Appellant s

,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY

, Appellee

.

No. 4D 17

- 2727

[ October 31, 2018 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Richard L. Ofted al , Judge; L.T. Case No. 2011

- CA

- 012572.

Mark L. Pomeranz of Pomeranz & Associates, P.A., Hallandale, for

appellants.

James H. Wyman of Hinshaw & Culbertson LL P, Coral Gables , for

appellee.

F ORST

, J.

Appellant s Samuel Torres and Melissa Renaldo (“Borrowers”) appeal

the final judgment of foreclosure entered in favor of Appellee Deutsche

Bank National Trust Company (“the Bank”)

. Borrowers argue the Bank

lacked standing to bring the foreclosure action and failed to comply with

conditions precedent to foreclos e . We affirm without comment on the

standing issue . However, we find that the Bank failed to prove compli ance

with the condition prec edent of mailing Borrowers a default notice as required by paragraph 22 of the mortgage. Thus, we reverse and remand

for the trial court to enter an order of involuntary dismissal.

Background

Borrowers executed a note and mortgage with Novastar Mortga ge, Inc.

(“Novastar”). Paragraph 22 of the mortgage provided that

, prior to

acceleration, the lender must give the borrower notice and an opportunity

to cure the default. Paragraph 15 provided that such notice must be

written and “shall be deemed to have been given to Borrower when mailed

by first class mail or when act ually delivered to Borrower’ s notice address2 if sent by other means.”

The mortgage was assigned to the Bank. Shortly thereafter, t he Bank

filed a foreclosure complaint against Borrowers , alleging a default under

the note and mor tgage. The complaint also maintain ed that all conditions

precedent to foreclosure had been fulfilled. In Borrowers ’ answer, they

assert ed as an affirmative defense that the Bank failed to comply with the

condition precedent of mailing a default notice to Borrowers

.

At trial, B ank introduced a default letter addressed to Borrowers from

Novastar’s servicer, Saxon, through the testimony of a senior loan analyst

for the Bank’s servicer, Ocwen Financial (“Ocwen”). The loan analyst ’s

testimony laid the necessary foundation for admis sion of the notice letter

, and admissibility of the letter is not at issue on appeal

.

The loan analyst testified that

, based upon the words “CERTIFIED

MAIL” and “Return Receipt Requested” typed on the letter, and the barcode

on the letterhead, she believed the letter had been sent to Borrowers

. She

admitted the file did not contain a copy of a return receipt. When asked if

it was possible that the letter was created but never actually mailed, the

loan analyst stated

, “I don’t see what would be the point of the servicer

taking the time, money, and energy to generate a letter and not mail it

out.” The loan analyst further testified that although she was “not sure

exactly how Saxon does it,” she knew that once a borrower is in default, a

letter i s generated and verified before it is sent out. When asked if the

Saxon payment history might reflect the certified mail cost of sending the

letter, the loan analyst identified an entry for $7.00 dated one day after

the date on the letter and labelled “br each fee.” She stated that Ocwen’s

certified mail cost was $6.53, “[s]o it is similar.”

The trial court denied Borrowers ’ motion for involuntary dismissal , and

subsequently entered a final judgment of foreclosure in favor of the Bank.

Analysis

We review the denial of a motion for involuntary dismissal de

novo. Deutsche Bank Nat’l Trust Co. v. Huber , 137 So. 3d 562, 563 (Fla. 4th

DCA 2014)

. An involuntary dismissal is proper when the evidence, viewed

in the light most favorable to the non

- moving party

, fails to establish a

prima facie case. Wells Fargo Bank, N.A. v. Balkissoon, 183 So. 3d 1272,

1275 (Fla. 4th DCA 2016)

.

Where there are conditions precedent to filing the foreclosure suit, a

bank must prove that it has substantially complied with them. O rtiz v.3 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 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)

. I n addition to introducing

the letter, the bank must also present competent, substantial evidence that

the letter was actually mailed

. Ensler v. Aurora Loan Serv s.

, LLC

, 178 So.

3d 95, 97 (Fla. 4th DCA 2015)

.

E vidence 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. 3 d 1193, 1195 (Fla. 5th DCA 2014). R ather, the “ m ailing must be

proven by producing additional evidence such as proof of regular business

practices, an affidavit swearing that the letter was mai led, 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 pe rsonal 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)

. M ere r eliance on the

boarding process to prove that the notice letter was mailed is insufficient

. See Allen

, 216 So. 3d at 687

.

Without personal knowledge on the part of the witness, her testimony

was insufficient to establish the letter was mailed

. H ere, t here was no

return receipt and no affidavit swearing that the letter was mailed. The

loan analyst ’s testimony was the Bank’s only evidence that the letter had

been mailed to Borrowers . T he loan analyst testified that she did not have

personal knowledge of Saxon’s regular business practi ces of mailing

default letters

, and merely opined that it did not make sense “to generate

the letter and not mail it out.” See i d. at 68 8 (finding witness’s testimony

that “ she knew the letter was mailed because it had been created, the

account did not contain anything indicating that it was returned as

undeliverable, and ‘servicers aren’t in the habit of generating letters that

they don’t send’” was insufficient to establish mailing ).

The loan analyst also speculated that the $7.00 “breach fee ” li kely

reflected the cost to mail the letter because it was dated the day after the

date on the letter, and because the amount was similar to the amount

Ocwen pays for certified mail costs. This, too, was insufficient evidence of

Saxon’s business practices

. See Spencer

, 242 So. 3d at 1190 (finding the4 testimony insufficient when the witness merely speculated as to the

procedures and policies of the prior servicer based on informal discussion s

with co

- workers who previously worked for the prior servicer).

Finally, we note that the request for a return receipt was typed on the

letter, and the barcode on top of the letter was generated at the time of

printing the letter . However, this establishes only that the letter was

created and printed . Without more, that is insufficient to prove mailing

. Se e Allen

, 216 So. 3d at 687; Burt

, 138 So. 3 d at 1195.

Conclusion

While the record contains sufficient evidence that the default letter was

produced, neither the letter nor the witness’s testimony established

mailing . Thus

, the Bank f ailed to prove that it complied with its

contractual requirement to mail a notice of default to Borrowers as a

condition precedent to foreclosure. Accordingly, we reverse and remand

for involuntary dismissal of the action. See Blum v. Deutsche Bank Tr. Co.

, 159 So. 3d 920, 920

- 21 (Fla. 4th DCA 2015) (reversing a final judgment of

foreclosure and remanding for dismissal based on the bank’s failure to

prove it complied with the notice requirement by mailing the notice to the

defendant).

Reversed and Remanded for entry of an involuntary dismissal of the

action

.

M AY

, J. and H ILAL

, J ENNIFER W., Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.