WEST PALM BEACH --- The Florida Fourth District Court of Appeal has ordered a trial court in Tampa to enter an order of involuntary dismissal concerning a suit filed against Isaiah and Shatika Spencer to foreclose on their home.

The ruling, handed down April 4, said that the plaintiffs, Ditech and its predecessor in interest, EverHome, had “failed to establish as a condition precedent to filing suit that the Spencers were given notice of default as required.” 

The Spencers had purchased a home, financed through the Federal National Mortgage Association (FNMA) and signed a mortgage note on March 28, 2003.  Details of the mortgage required, in case of a default, the lender had to give the borrower notice and an opportunity to cure the default. Another requirement was the notice had to be written and "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."

Although EverHome alleged all requirements of foreclosure had been met, the Spencers said that they had never received a notice of foreclosure.  During the trial at the 13th Judicial Circuit in Hillsborough County, a default letter to the Spencers was exhibited by EverHome.  A Ms. Knight, identified the default letter addressed to the Spencers and described to the court how the company gives notice of foreclosure to its clients. The Spencers’ attorneys objected to the validity of this testimony because Knight was an employee of Ditech, not EverHome.

Although the default letter was allegedly sent June 17, 2010,  Knight admitted that no discussions about this loan or any other loan had taken place prior to 2014, when the service transfer from EverHome to Ditech occurred. She further admitted that she had never worked for EverHome, had never sent default letters on behalf of EverHome, and had not read EverHome's written policies and procedures from June 2010. 

Upon questioning, Knight admitted she was not personally involved in sending the default letter and that she did not have any documents other than the letter itself to show that the letter was sent.

In addition, Ditech never produced any other evidence that foreclosure notice had been served. Nevertheless, Circuit Court Judge Sandra Taylor overruled the Spencers’ objections and granted Ditech’s request for foreclosure.

The order of involuntary dismissal issued by the appeals court will not allow Ditech to file another suit against the Spencers. Judge Susan H. Rothstein-Youakim concurred as did Judge Samuel J. Salario, Jr., who said, “Our court routinely follows the general rule that a party that fails to meet its burden of proof in the trial court does not, when we reverse a judgment in its favor, get a second bite at the apple by way of a new trial or hearing on remand.

"This is as it should be. The interests of the parties and the judicial system in finality and in avoiding drawn-out, expensive, piecemeal litigation require that the parties and the courts regard the trial as the brass ring and not as the first step of an odyssey to an eventual result many proceedings away.”

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