Nowlin v. Nationstar Mortgage, LLC

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WALTER G. NOWLIN and VALERIE A. )
NOWLIN, )
)
Appellants, )
)
v. ) Case No. 2D15-331
)
NATIONSTAR MORTGAGE, LLC, )
)
Appellee. )
)
Opinion filed June 10, 2016.
Appeal from the Circuit Court for
Hillsborough County; Donald C. Evans,
Senior Judge, and Sandra Taylor, Judge.
Peter Ticktin, Kendrick Almaguer, and
Satyen D. Gandhi of The Ticktin Law Group,
P.A., Deerfield Beach, for Appellants.
Nancy M. Wallace and Michael J. Larson of
Akerman LLP, Tallahassee; and William P.
Heller of Akerman LLP, Fort Lauderdale, for
Appellee.
CASANUEVA, Judge.
Walter G. Nowlin and Valerie A. Nowlin appeal a final judgment of
foreclosure entered in favor of Nationstar Mortgage, LLC, and they raise two claims of
error. First, the Nowlins contend that the trial court erred in finding that they defaulted
on the mortgage when the loan had been modified, and second, they contend that the
trial court erred in finding that Nationstar complied with a condition precedent clause
contained in the mortgage. On the authority of Green Tree Servicing, LLC v. Milam,
177 So. 3d 7 (Fla. 2d DCA 2015), reh'g denied, (Oct. 13, 2015); Ortiz v. PNC Bank,
National Ass'n, 41 Fla. L. Weekly D799 (Fla. 4th DCA Mar. 30, 2016); Bank of New York
v. Mieses, 187 So. 3d 919 (Fla. 3d DCA 2016); and Bank of New York Mellon v.
Johnson, 185 So. 3d 594 (Fla. 5th DCA 2016), we affirm the trial court's ruling as to the
second issue without further discussion.
We agree with the Nowlins that the trial court erred in entering a final
foreclosure judgment when the loan at issue had been modified. We will also address
an issue created by the manner in which the final judgment was issued.
I. FACTS AND PROCEDURAL HISTORY
BAC Home Loans Servicing filed an amended foreclosure complaint
against the Nowlins which alleged that the Nowlins defaulted on a mortgage and
promissory note that were executed on October 7, 2002.1 BAC alleged that the
installment payment due on August 1, 2009, was not received, and no subsequent
payments had been received. BAC later transferred its right to enforce the loan to
Nationstar, and Nationstar was substituted as the plaintiff on July 28, 2014.
At the subsequent bench trial, the Nowlins testified that BAC modified their
mortgage in July 2009. Prior to this, the Nowlins had never missed a payment and had
never made a late payment. On July 28, 2009, BAC, through its Home Retention
Division, issued a letter to the Nowlins which states, "We are pleased to advise you that
1
The original complaint was filed on June 18, 2010.
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your loan modification has been approved. In order for the modification to be valid, the
enclosed documents need to be signed and returned." Two documents had to be
returned: a Step Rate Loan Modification Addendum to Loan Modification Agreement
and a Loan Modification Agreement. The modification documents were signed,
notarized, and sent back to BAC via Federal Express. The Nowlins used the Federal
Express envelope which was provided to them by BAC. The Nowlins produced a
receipt from Federal Express indicating that the envelope was shipped on August 17,
and that it was received on August 18, 2009.
The Nowlins were also required to send to BAC cashier's checks for three
consecutive mortgage payments beginning on October 1. They were informed that after
the third payment was received, the modification would become permanent. The
Nowlins introduced a certified check that was cashed by BAC on September 9 for the
first payment that was due on October 1. Two other certified checks were introduced
into evidence which had been cashed by BAC for the payments due on November 1
and December 1.
Despite the Nowlins' compliance with the terms of the modification
agreement, BAC sent a letter to the Nowlins in December 2009, notifying them that BAC
was going to accelerate their loan because the August 1, 2009, payment had not been
received. When Ms. Nowlin called to find out why the modification was cancelled, BAC
informed her that the modification had been cancelled in November, and they would
have to obtain another modification. The Nowlins sent in the paperwork for the second
loan modification, but BAC claimed that the paperwork was not in their file.
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II. EVIDENCE ESTABLISHED A VALID AGREEMENT TO MODIFY LOAN
We conclude that there was a valid modification agreement between BAC
and the Nowlins and, therefore, the trial court erred in entering the judgment of
foreclosure. "A contract is made when the three elements of contract formation are
present: offer, acceptance, and consideration. No person or entity is bound by a
contract absent the essential elements of offer and acceptance." 11 Fla. Jur. 2d
Contracts § 25 (2016) (footnotes omitted).
Further, "[w]ith a bilateral contract such as the one in this case,
acceptance is the last act necessary to complete the contract." Pezold Air Charters v.
Phoenix Corp., 192 F.R.D. 721, 725 (M.D. Fla. 2000). "Pursuant to contract law, the
acceptance of an offer which results in an enforceable agreement must be (1) absolute
and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the
place, and within the time expressly or impliedly stated within the offer." Gillespie v.
Bodkin, 902 So. 2d 849, 850 (Fla. 1st DCA 2005).
When the acceptance of an offer is conditioned upon the mailing of the
acceptance, the acceptance "is effective upon mailing and not upon receipt." Morrison
v. Thoelke, 155 So. 2d 889, 905 (Fla. 2d DCA 1963).
An acceptance may be transmitted by any means which the
offeror has authorized the offeree to use and, if so
transmitted, is operative and completes the contract as soon
as put out of the offeree's possession, without regard to
whether it ever reaches the offeror, unless the offer
otherwise provides.
Kendel v. Pontious, 261 So. 2d 167, 169 (Fla. 1972) (quoting Restatement (First) of
Contracts § 64 (Am. Law Inst. 1932)).
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BAC specifically defined what actions would constitute an acceptance of
its offer to modify the mortgage contract. The Nowlins were required to sign and return
the documents provided by BAC, and they were required to make three monthly
payments beginning on October 1, 2009. The Nowlins testified that they returned the
signed documents in the Federal Express envelope provided by BAC, and they
produced a receipt from Federal Express indicating that the envelope was shipped on
August 17 and that it was received on August 18, 2009.
At trial, Nationstar did not dispute the contents of the July 28 letter, the
fact that a Federal Express envelope was enclosed to facilitate the return of the loan
documents, or the fact that Federal Express delivered a package to a Pittsburgh
address and its Home Retention Division address is 100 Beecham Drive, Suite 104,
Pittsburgh, Pennsylvania. Rather, its default specialist testified that Nationstar had no
record of receiving the loan modification documents. Therefore, it contended, the
Nowlins must not have returned the loan modification documents. We do not find merit
in this argument, because it was the mailing of the documents that constituted an
acceptance of the offer, not whether Nationstar's records showed that the documents
were received.
Finally, the evidence reflected, without contradiction, that subsequent to
the mailing of the loan modification documents, the Nowlins tendered three consecutive
monthly payments in the amount required by BAC. Nationstar's witness confirmed that
each of the Nowlins' three payments had been received and accepted. When a party
accepts the benefits under a contract, courts must ratify the contract even if that party
contends that it had a contrary intent. Stevenson v. Stevenson, 661 So. 2d 367, 369
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(Fla. 4th DCA 1995). Thus, by accepting the benefits of the loan modification,
Nationstar cannot now question the validity of the contract. Having entered into a valid
modification agreement, Nationstar could only foreclose by alleging and proving a
breach of the modification agreement and neither of which was done here. See
Kuehlman v. Bank of Am., N.A., 177 So. 3d 1282, 1283 (Fla. 5th DCA 2015).
III. FINAL JUDGMENT
Although not raised by the parties, we are greatly concerned over the final
judgment issued in this case. The trial transcript reflects that the proceedings were
heard before the Honorable Sandra Taylor. At the conclusion of the foreclosure trial,
she made no findings of fact or rulings of law. However, the final judgment purports to
have been rendered by the Honorable Donald C. Evans, Senior Judge. Nothing in our
record establishes or even hints at why a judge, other than the trial judge, entered this
final judgment. The entry of a final judgment by a judge who did not preside over the
trial, without more, is improper. "[A] successor judge may not enter an order or
judgment based upon evidence heard by the predecessor judge." Hartney v. Piedmont
Tech., Inc., 814 So. 2d 1217, 1218 (Fla. 1st DCA 2002) (quoting Carr v. Byers, 578 So.
2d 347, 348 (Fla. 1st DCA 1991)); see also Acker v. State, 823 So. 2d 875, 876 (Fla. 2d
DCA 2002) (reversing probation order where judge who signed the order did not hear
the testimony of the witnesses nor could she evaluate their credibility).
IV. CONCLUSION
We reverse the final judgment of foreclosure and remand with directions to
enter judgment in favor of the Nowlins.
LUCAS and SALARIO, JJ., Concur.
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