1. The Second DCA reversed a bank’s final judgment of foreclosure finding the bank’s evidence, which consisted of the demand letter and witness testimony, was insufficient to prove it satisfied conditions precedent. Spencer v. Ditech Fin., 2D16-4817, 2018 Fla. App. LEXIS 4541 (2d DCA Apr. 4, 2018). In Spencer, the plaintiff, EverHome, prepared and mailed out the demand letter. At trial, the bank’s witness, employed by Ditech, testified to this fact. However, “when pressed” she admitted her only knowledge of the routine practices of EverHome stemmed from training that “consisted of informally discussing EverHome’s policies and procedures with coworkers who currently worked for Ditech but had previously worked for EverHome.”
  2. The Fourth DCA found the bank’s witness incompetent to testify about the mailing of the demand letter based on her lack of personal knowledge of EverHomes business practices. The Court explained 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.” Since the only other evidence the Bank presented regarding conditions precedent was the demand letter itself, the Court found the Bank failed to satisfy its burden of proof and remanded for an involuntary dismissal.
  3. Most evidentiary disputes can be anticipated, especially evidence intended to prove key issues in the case. If available, the Bank should be prepared to proffer redundant evidence on key issues such as standing and conditions precedent since it likely will not get a “second bite at the apple” if an appellate court deems a portion of its evidence inadmissible or insufficient.