IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
PNC BANK NATIONAL ASSOCIATION,
Appellant,
v. Case No. 5D16-3341
COURTNEY ROBERTS AND CAROL ROBERTS,
Appellees.
________________________________/
Opinion filed April 27, 2018
Appeal from the Circuit Court for Brevard County, Lisa Davidson, Judge.
William L. Grimsley, N. Mark New, II, Kimberly Held Israel and Gabriel M. Hartsell, of McGlinchey Stafford, Jacksonville, for Appellant.
Michael A. Saracco, of Saracco Law, Cocoa, for Appellees.
PER CURIAM.
PNC Bank National Association (Bank) appeals the involuntary dismissal of its
foreclosure complaint against Courtney and Carol Roberts (Borrowers), after the trial
court found that Bank failed to produce competent, substantial evidence showing it
complied with the condition precedent to acceleration and foreclosure in paragraph 22 of
the mortgage. Paragraph 22 required Bank to send Borrowers a notice informing them that the loan was in default at least thirty days before accelerating the loan. Because
Borrowers' affirmative defense that the acceleration letters were not mailed was waived,
and Bank offered competent, substantial evidence that the acceleration letters were
mailed, we reverse.
On August 23, 2002, Borrowers executed a promissory note in the amount of
$509,900 in favor of Fidelity Federal Bank & Trust1 to fund construction of a new home.
The note was secured by a mortgage on the property in favor of Fidelity Federal Bank &
Trust. Borrowers later obtained an additional $284,100 in loans from National City
Mortgage Co., after which the parties agreed to a mortgage modification agreement
increasing the principal due on the note and mortgage to $794,000.
In 2009, Borrowers defaulted on the loan. As a result, on January 7, 2010, Bank
sent Borrowers two acceleration letters2 stating that the loan was in default because
Borrowers had missed the payment due on September 1, 2009, and all subsequent
payments. The letters gave Borrowers until February 6, 2010, to cure the default. When
Borrowers failed to cure the default, Bank filed its complaint to foreclose the mortgage.
In their amended answer, Borrowers generally denied all of the allegations in the
foreclosure complaint and specifically denied that Bank complied with the conditions
precedent to accelerate the loan. They raised twenty-seven affirmative defenses, the
fourth of which stated:
1 On April 14, 2007, Fidelity Federal Bank & Trust merged with National City Mortgage Co. On October 1, 2008, National City Mortgage Co. merged with National City Bank. National City Bank was acquired by Bank on November 6, 2009. 2 One acceleration letter was addressed to Courtney Roberts and the other was addressed to Carol Roberts.
2 As a fourth affirmative defense, defendant states that plaintiffs failed to perform conditions precedent to the initiation of this action and or for acceleration of payment allegedly due. As a result, defendant has been denied a good faith opportunity, pursuant to the mortgage and the servicing obligations of the plaintiff to avoid acceleration and this foreclosure. More specifically, Plaintiff has failed to perform conditions precedent by failing to comply with paragraph 22 of the subject mortgage and failing to comply with the notice requirements in the mortgage.
Thereafter, Bank sought to obtain more information about Borrowers' fourth
affirmative defense through an interrogatory that asked Borrowers to "state all facts that
support [y]our fourth affirmative defense that there has been a failure of conditions
precedent." Borrowers responded to the interrogatory by stating under oath, "[t]he note
was cancelled and no conditions precedent exist." Another interrogatory requested the
factual basis for all of the twenty-seven affirmative defenses. Borrowers responded with
only the short notation, "[p]aid + cancelled note."
Bank argues that Borrowers waived their fourth affirmative defense with these
interrogatory responses. "A litigant may abandon any defense he elects to abandon, and
the defendant in a civil suit may waive any right he chooses, generally simply by never
asserting it." State v. Fla. Nat'l Props., Inc., 338 So. 2d 13, 19 (Fla. 1976) (Hatchett, J.,
concurring, in part, and dissenting, in part). For instance, affirmative defenses can be
waived if they are not listed in the pretrial order or through a statement to the jury during
closing arguments. Cooke v. Ins. Co. of N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA
1995); Vendola v. S. Bell Tel. & Tel. Co., 474 So. 2d 275, 279–80 (Fla. 4th DCA 1985).
Moreover, while there is no Florida case law on waiver of defenses through interrogatory
responses, other states that have addressed the issue have found that interrogatory
responses made under oath are binding and can waive a defense. See Young v. Guild,
3 7 So. 3d 251, 261–62 (Miss. 2009) ("Young's denial in her discovery response was
binding on her; she waived her right to an apportionment instruction."); Coho Res., Inc. v.
McCarthy, 829 So. 2d 1, 24 (Miss. 2002) (holding that failure to identify other tortfeasors
in response to interrogatory requesting identity of any parties defendant believed caused
the accident waived right to apportion fault to another tortfeasor); Allstate Indem. Co. v.
Brown, 696 N.E.2d 92, 97 (Ind. Ct. App. 1998) (finding waiver of issue on "consent to
sue" clause in insurance contract because insurer's "complaints and its responses to
interrogatories gave [plaintiff] no reason to believe that he had failed to comply with the
policy terms" (citing Indiana Ins. Co. v. Noble, 265 N.E.2d 419, 435 (Ind. App. 1970))).
We see no reason to hold differently here and conclude Borrowers' assertion that "no
conditions precedent exist" in their answer to Bank’s interrogatory waived their fourth
affirmative defense. Thus, the trial court should not have considered it.
Waiver notwithstanding, Bank presented competent, substantial evidence at trial
that it complied with paragraph 22 of the mortgage. Paragraph 22 requires Bank to send
Borrowers a written acceleration letter informing them "that the loan is in default and the
debt is being accelerated, how to cure the default by paying a specified amount, providing
at least thirty days within which to cure, and other important information." Figueroa v.
Fed. Nat'l Mortg. Ass'n, 180 So. 3d 1110, 1116 (Fla. 5th DCA 2015). Under paragraph
15 of the mortgage, the acceleration letter must be sent by first-class mail or be actually
delivered to Borrowers at the property address or, if designated, their notice address. Id.
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
PNC BANK NATIONAL ASSOCIATION,
Appellant,
v. Case No. 5D16-3341
COURTNEY ROBERTS AND CAROL ROBERTS,
Appellees.
________________________________/
Opinion filed April 27, 2018
Appeal from the Circuit Court for Brevard County, Lisa Davidson, Judge.
William L. Grimsley, N. Mark New, II, Kimberly Held Israel and Gabriel M. Hartsell, of McGlinchey Stafford, Jacksonville, for Appellant.
Michael A. Saracco, of Saracco Law, Cocoa, for Appellees.
PER CURIAM.
PNC Bank National Association (Bank) appeals the involuntary dismissal of its
foreclosure complaint against Courtney and Carol Roberts (Borrowers), after the trial
court found that Bank failed to produce competent, substantial evidence showing it
complied with the condition precedent to acceleration and foreclosure in paragraph 22 of
the mortgage. Paragraph 22 required Bank to send Borrowers a notice informing them that the loan was in default at least thirty days before accelerating the loan. Because
Borrowers' affirmative defense that the acceleration letters were not mailed was waived,
and Bank offered competent, substantial evidence that the acceleration letters were
mailed, we reverse.
On August 23, 2002, Borrowers executed a promissory note in the amount of
$509,900 in favor of Fidelity Federal Bank & Trust1 to fund construction of a new home.
The note was secured by a mortgage on the property in favor of Fidelity Federal Bank &
Trust. Borrowers later obtained an additional $284,100 in loans from National City
Mortgage Co., after which the parties agreed to a mortgage modification agreement
increasing the principal due on the note and mortgage to $794,000.
In 2009, Borrowers defaulted on the loan. As a result, on January 7, 2010, Bank
sent Borrowers two acceleration letters2 stating that the loan was in default because
Borrowers had missed the payment due on September 1, 2009, and all subsequent
payments. The letters gave Borrowers until February 6, 2010, to cure the default. When
Borrowers failed to cure the default, Bank filed its complaint to foreclose the mortgage.
In their amended answer, Borrowers generally denied all of the allegations in the
foreclosure complaint and specifically denied that Bank complied with the conditions
precedent to accelerate the loan. They raised twenty-seven affirmative defenses, the
fourth of which stated:
1 On April 14, 2007, Fidelity Federal Bank & Trust merged with National City Mortgage Co. On October 1, 2008, National City Mortgage Co. merged with National City Bank. National City Bank was acquired by Bank on November 6, 2009. 2 One acceleration letter was addressed to Courtney Roberts and the other was addressed to Carol Roberts.
2 As a fourth affirmative defense, defendant states that plaintiffs failed to perform conditions precedent to the initiation of this action and or for acceleration of payment allegedly due. As a result, defendant has been denied a good faith opportunity, pursuant to the mortgage and the servicing obligations of the plaintiff to avoid acceleration and this foreclosure. More specifically, Plaintiff has failed to perform conditions precedent by failing to comply with paragraph 22 of the subject mortgage and failing to comply with the notice requirements in the mortgage.
Thereafter, Bank sought to obtain more information about Borrowers' fourth
affirmative defense through an interrogatory that asked Borrowers to "state all facts that
support [y]our fourth affirmative defense that there has been a failure of conditions
precedent." Borrowers responded to the interrogatory by stating under oath, "[t]he note
was cancelled and no conditions precedent exist." Another interrogatory requested the
factual basis for all of the twenty-seven affirmative defenses. Borrowers responded with
only the short notation, "[p]aid + cancelled note."
Bank argues that Borrowers waived their fourth affirmative defense with these
interrogatory responses. "A litigant may abandon any defense he elects to abandon, and
the defendant in a civil suit may waive any right he chooses, generally simply by never
asserting it." State v. Fla. Nat'l Props., Inc., 338 So. 2d 13, 19 (Fla. 1976) (Hatchett, J.,
concurring, in part, and dissenting, in part). For instance, affirmative defenses can be
waived if they are not listed in the pretrial order or through a statement to the jury during
closing arguments. Cooke v. Ins. Co. of N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA
1995); Vendola v. S. Bell Tel. & Tel. Co., 474 So. 2d 275, 279–80 (Fla. 4th DCA 1985).
Moreover, while there is no Florida case law on waiver of defenses through interrogatory
responses, other states that have addressed the issue have found that interrogatory
responses made under oath are binding and can waive a defense. See Young v. Guild,
3 7 So. 3d 251, 261–62 (Miss. 2009) ("Young's denial in her discovery response was
binding on her; she waived her right to an apportionment instruction."); Coho Res., Inc. v.
McCarthy, 829 So. 2d 1, 24 (Miss. 2002) (holding that failure to identify other tortfeasors
in response to interrogatory requesting identity of any parties defendant believed caused
the accident waived right to apportion fault to another tortfeasor); Allstate Indem. Co. v.
Brown, 696 N.E.2d 92, 97 (Ind. Ct. App. 1998) (finding waiver of issue on "consent to
sue" clause in insurance contract because insurer's "complaints and its responses to
interrogatories gave [plaintiff] no reason to believe that he had failed to comply with the
policy terms" (citing Indiana Ins. Co. v. Noble, 265 N.E.2d 419, 435 (Ind. App. 1970))).
We see no reason to hold differently here and conclude Borrowers' assertion that "no
conditions precedent exist" in their answer to Bank’s interrogatory waived their fourth
affirmative defense. Thus, the trial court should not have considered it.
Waiver notwithstanding, Bank presented competent, substantial evidence at trial
that it complied with paragraph 22 of the mortgage. Paragraph 22 requires Bank to send
Borrowers a written acceleration letter informing them "that the loan is in default and the
debt is being accelerated, how to cure the default by paying a specified amount, providing
at least thirty days within which to cure, and other important information." Figueroa v.
Fed. Nat'l Mortg. Ass'n, 180 So. 3d 1110, 1116 (Fla. 5th DCA 2015). Under paragraph
15 of the mortgage, the acceleration letter must be sent by first-class mail or be actually
delivered to Borrowers at the property address or, if designated, their notice address. Id.
A rebuttable presumption of receipt arises if it is sent by first-class mail. See Progressive
Express Ins. Co. v. Camillo, 80 So. 3d 394, 402 (Fla. 4th DCA 2012) ("Proof of mailing of
4 7 So. 3d 251, 261–62 (Miss. 2009) ("Young's denial in her discovery response was
binding on her; she waived her right to an apportionment instruction."); Coho Res., Inc. v.
McCarthy, 829 So. 2d 1, 24 (Miss. 2002) (holding that failure to identify other tortfeasors
in response to interrogatory requesting identity of any parties defendant believed caused
the accident waived right to apportion fault to another tortfeasor); Allstate Indem. Co. v.
Brown, 696 N.E.2d 92, 97 (Ind. Ct. App. 1998) (finding waiver of issue on "consent to
sue" clause in insurance contract because insurer's "complaints and its responses to
interrogatories gave [plaintiff] no reason to believe that he had failed to comply with the
policy terms" (citing Indiana Ins. Co. v. Noble, 265 N.E.2d 419, 435 (Ind. App. 1970))).
We see no reason to hold differently here and conclude Borrowers' assertion that "no
conditions precedent exist" in their answer to Bank’s interrogatory waived their fourth
affirmative defense. Thus, the trial court should not have considered it.
Waiver notwithstanding, Bank presented competent, substantial evidence at trial
that it complied with paragraph 22 of the mortgage. Paragraph 22 requires Bank to send
Borrowers a written acceleration letter informing them "that the loan is in default and the
debt is being accelerated, how to cure the default by paying a specified amount, providing
at least thirty days within which to cure, and other important information." Figueroa v.
Fed. Nat'l Mortg. Ass'n, 180 So. 3d 1110, 1116 (Fla. 5th DCA 2015). Under paragraph
15 of the mortgage, the acceleration letter must be sent by first-class mail or be actually
delivered to Borrowers at the property address or, if designated, their notice address. Id.
A rebuttable presumption of receipt arises if it is sent by first-class mail. See Progressive
Express Ins. Co. v. Camillo, 80 So. 3d 394, 402 (Fla. 4th DCA 2012) ("Proof of mailing of
4 While the dates on the acceleration letters are evidence only as to when the letters
were drafted and do not show whether or when they were sent, see Allen, 216 So. 3d at
687–88 (citing Burt, 138 So. 3d at 1195), Thomas's personal knowledge of Bank's and
Venture’s routine business practices and policies for acceleration letters mailed in 2010,
when the pertinent acceleration letters were mailed, coupled with the admission of the
acceleration letters, constitutes competent, substantial evidence that the acceleration
letters were actually mailed to Borrowers in this case.4 § 90.406, Fla. Stat. (2009); Brown
v. Giffen Indus., Inc., 281 So. 2d 897, 899–900 (Fla. 1973); CitiBank, N.A. for WAMU
Series 2007-HE2 Tr. v. Manning, 221 So. 3d 677, 681-82 (Fla. 4th DCA 2017); Allen, 216
So. 3d at 688 (citing CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA
2016)); State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992, 1007 (Fla. 4th DCA 2001)
(citing Best Meridian Ins. Co. v. Tuaty, 752 So. 2d 733, 735 (Fla. 3d DCA 2000)). The
trial court erred in concluding otherwise.
Accordingly, we reverse the final judgment entered in favor of Borrowers and
remand for entry of final judgment in favor of Bank.
REVERSED and REMANDED.
SAWAYA, BERGER and WALLIS, JJ., concur.
4Additionally, Borrowers can show no prejudice because there is no evidence they attempted to cure the default at any point. See Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 47 (Fla. 5th DCA 2015) (citing Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1248–49 (Fla. 5th DCA 2012)).