Testimony regarding a company's routine business practices may establish a rebuttable presumption that the default letter was mailed. But the witness must have personal knowledge of the company's general mailing practice -- meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company's routine practice for mailing letters.
On Friday, July 13, 2018, the Second District Court of Appeal in Soule v. U.S. Bank Nat’l Assoc., Case No. 2D16-3231, 43 Fla. L. Weekly D1590f, (Fla. 2d July 13, 2018), reversed the final judgment entered in favor of the Bank, and remanded for an involuntary dismissal. In reaching this ruling, the Second District Court of Appeal held that the Bank was the successor servicer and had not prepared or mailed the default letter, and that the witness worked for the Bank and had no personal knowledge of the mailing practices of the predecessor servicer. Without the testimony based on such personal knowledge, the Bank’s only competent evidence was that the default letter had been prepared, not that it had been mailed.
In reaching this holding, the Second District Court of Appeal, cited Spencer v. DiTech Financial, LLC, 43 Fla. L. Weekly D720 (Fla. 2d DCA Apr. 4, 2018), in which the Second District Court of Appeal held in Spencer, “the fact that a document is drafted is insufficient in itself to establish that it was mailed Rather, mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt.” Further, in Spencer, the Court went onto to state that “testimony regarding a company's routine business practices may establish a rebuttable presumption that the default letter was mailed. But the witness must have personal knowledge of the company's general mailing practice -- meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company's routine practice for mailing letters.”
This case is not final.
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