In March this year the Second DCA issued a detailed twenty-page opinion on what seemed to be a very simple foreclosure case dealing with the issue of conditions precedent. Mace v. M&T Bank, No. 2D16-3381, 2020 WL 1444996 (Fla. 2d DCA Mar. 25, 2020). The dispositive issue in the case and the sole issue addressed by the Second DCA in its written opinion pertained to the sufficiency of the Bank’s evidence that it satisfied conditions precedent. The majority concluded hearsay testimony regarding mailing of the default notice should have been excluded and without it the Bank failed to proffer legally sufficient evidence it complied with conditions precedent.
Judge Black argued in his dissent that the Maces failed to preserve the erroneous evidentiary ruling for appellate review so the only reviewable issue on appeal was whether the lower court’s denial of the Maces’ motion for involuntary dismissal was proper. Judge Black concluded, based on all the evidence, the lower court ruled properly in refusing to voluntarily dismiss the case. Judge Black then explained even if the Maces properly presented the issue of admissibility on appeal and the Court, as it did, concluded the Bank’s witness’ testimony regarding mailing of the default notice was improperly admitted hearsay, remand for a new trial, and not dismissal, was the appropriate remedy.
Judge Black’s dissent is well-written and contains a compelling argument for retrial rather than dismissal. Unfortunately, most of the judges sitting in Florida’s second district disagreed with Judge Black’s analysis. Their resulting opinion is an unwelcome precedent on a “hotly contested matter in residential foreclosure cases”. Thankfully, its precedential value is limited to the trial courts within the Second DCA’s jurisdiction since other district courts of appeal have reached different conclusions on this issue. Notably, Judge Black did identify an “inter- and intradistrict conflict” regarding the issue and requested that the following question be certified to the Florida Supreme Court: “CAN THE REVIEWING COURT DISREGARD ERRONEOUSLY ADMITTTED EVIDENCE IN REVIEWING THE ARGUMENT THAT INSUFFICIENT EVIDENCE SUPPORTING A CLAIM WAS PRESENTED BELOW?” Stay tuned!
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