MTGLQ INVESTORS, L.P. v. BARBARA NINA DAVIS , 270 So. 3d 392 ( 2019 )

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 brought 1 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. . . .
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.
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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.
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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.
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