In Helton v. Bank of America, 5D14-2632 (Fla. 5th DCA Jan. 22, 2016), Florida’s Fifth Circuit Court of Appeal echoed its opinion in Webster v. Chase Home Finance, LLC, 155 So. 3d 1219, 1220 (Fla. 5th DCA 2015) that oral testimony unsubstantiated by corresponding business records, that required foreclosure notice was actually sent, is insufficient. In reversing on hearsay grounds, the Fifth DCA observed that the witness did not purport to testify from personal knowledge that the notice was sent but rather that the lenders business records reflected it was sent. However, those records were not entered into evidence, resulting in the final judgment obtained at trial being reversed.

It’s unclear from the opinion if the witness purported to be able to ascertain from the face of the copy of the notice entered into evidence that the notice was in fact sent. It seems not. Instead, the opinion characterizes the testimony as stating what the “recorded indicated.” While it seems axiomatic that one relying to prove a particular fact should enter that record into evidence, an attention to detail is critical in this regard. Often many different records, over and above the notice in question, will be necessary to prove that a particular notice was sent. Return mailing receipts, letter logs, postage logs, and other business records come to mind as possible solutions to the issue presented in Helton andWebster.

If none can be found, the Florida Supreme Court’s opinion in Brown v. Giffen Indus., Inc., 281 So. 2d 897, 900 (Fla. 1973) offers another possible solution. InBrown, the Florida Supreme Court held that “reliance on the presumption of mailing on the basis of normal office procedure was reasonable and proper, in light of the total lack of contrary evidence by petitioner.” Thus, a lender may offer testimony concerning the general office practices for duly mailing letters in the facility in question, and create a presumption that the practice was followed with the letter in question, triggering the corresponding presumption of receipt caused by the application of the mailbox rule. Thus, testimony of general office practices regarding due mailing shifts the onus on the borrower to come forward with some evidence that general office practice was not followed with respect to the mailing of the notice in question.  This is particularly difficult for borrowers who have been lax with discovery and done nothing to investigate the notice in question or the lender’s mailing practices.  It should be noted that the typical residential mortgage provides that required notices are deemed given when sent, making a presumption the letter was sent sufficient to establish performance, regardless of evidence suggesting the notice was received. However, none of this appears to have been done at trial in the Helton case.

What the Fifth District Court of Appeal has now made abundantly clear that a lender cannot do, is have the witness testify that “records reflect” the notice was sent, but not offer those records into evidence.

A copy of the opinion in Helton can be obtained here.