LAMBERT, J.
Jairo Diaz and Delsy Diaz ("Appellants") appeal the final judgment of foreclosure rendered against them and in favor of Appellee, Wells Fargo Bank, N.A. ("Bank"), following a bench trial. Appellants
On April 18, 2008, Wachovia Mortgage, FSB ("Wachovia"), loaned Appellants $167,200, as evidenced by a promissory note and secured by a mortgage on real property owned by Appellants. Wachovia merged with Bank, and, as a result, Bank acquired the note and mortgage on October 1, 2009.
Appellants failed to pay the October 1, 2011, payment due on the note. On November 13, 2011, Bank sent Appellants a default notice letter pursuant to paragraph twenty-two of the mortgage, advising them that: (1) the loan was in default for the failure to make past due payments in the amount of $2261.82; (2) a late charge of $51.37 had been assessed; (3) a payment in the total amount of $2313. 19 must be made in certified funds on or before December 13, 2011, plus any payments or other charges that become due under the note and mortgage between the date of the letter and the date of the satisfying payment, to bring the loan current and avoid the possibility of acceleration; (4) if payment was not received by December 13, 2011, Bank would proceed with acceleration and may file a foreclosure proceeding; and (5) Appellants had the right to reinstate the loan after acceleration and to present any defenses to the foreclosure action.
At trial, Bank presented one witness, a nineteen-year employee of Bank who, at the time of trial, was a loan administration manager and managed a team of six individuals who "review and authorize business records for trials and depositions." The witness testified as to her familiarity with the manner in which Bank creates, stores, and maintains its business records. The witness also testified about her familiarity with Bank's boarding process when it receives loan history data from a prior servicer of the loan and how that data is then converted and entered into Bank's system.
Bank sought to move the complete loan history into evidence through its witness's testimony, but Appellants objected to the admission of any information based upon records created by Wachovia before its
"A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of discretion, the trial court's ruling on evidentiary matters will not be overturned." LaMarr v. Lang, 796 So.2d 1208, 1209 (Fla. 5th DCA 2001) (citation omitted). In Nationstar Mortgage, LLC v. Berdecia, 169 So.3d 209 (Fla. 5th DCA 2015), this court discussed the evidentiary foundation necessary for the admissibility of mortgage documents under the business records hearsay exception,
Based on our review of the record in the instant case, we conclude that the trial court did not abuse its discretion in determining that Bank's witness was competent to testify and in admitting the loan history records into evidence.
As to Appellants' argument that Bank's default letter was defective, we first observe that Appellants did not preserve for review their argument that Bank's default letter failed to "specify the default" because Appellants did not make this argument to the trial court. To preserve an issue for appellate review, "the specific legal ground upon which a claim is based must be raised at trial...." Aills v. Boemi, 29 So.3d 1105, 1109 (Fla.2010) (quoting Chamberlain v. State, 881 So.2d 1087, 1100 (Fla.2004)). Regardless, we conclude that, even if preserved, this argument and Appellants' other argument, that Bank's letter did not sufficiently advise them how to cure the default, are without merit.
While Appellants are correct that the notice requirements in paragraph twenty-two of the mortgage are conditions precedent to Bank filing the present foreclosure suit, substantial compliance, not strict compliance, with this condition precedent is all that is required. See Bank of New York Mellon v. Nunez, 180 So.3d 160, 161 n. 1, 162 (Fla. 3d DCA 2015); see also Alvarez v. Rendon, 953 So.2d 702, 708 (Fla. 5th DCA 2007) ("[T]here must be at least a substantial performance of conditions precedent in order to authorize a recovery as for performance of a contract." (alteration in original) (quoting Cohen v. Rothman, 127 So.2d 143, 147 (Fla. 3d DCA
177 So.3d at 19.
Turning to Appellants' argument regarding non-compliance with certain federal regulations, Bank made a general allegation in its complaint, as it is permitted to do, that it had complied with all conditions precedent prior to bringing suit.
Title 24 of the Code of Federal Regulations is titled "Housing and Urban Development." The particular sections upon which Appellants rely are located in Subpart C of Part 203, which addresses the mortgage servicing responsibilities of lending institutions with regard to mortgages insured by HUD. See 24 C.F.R. § 203.500.
Section 203.602 is titled "Delinquency Notice to Mortgagor" and provides in pertinent part:
Section 203.604 is titled "Contact with the Mortgagor," and this regulation provides, in pertinent part:
Appellants argued below and argue here that because the bottom of each page of the note and mortgage contain the legend "FNMA/FHLMC Uniform Instrument"
"[A] defending party's assertion that a plaintiff has failed to satisfy conditions precedent necessary to trigger contractual duties under an existing agreement is generally viewed as an affirmative defense, for which the defensive pleader has the burden of pleading and persuasion." Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1096 (Fla.2010) (citing Fla. R. Civ. P. 1.120(c)) (additional citations omitted). "An affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action and the plaintiff is not bound to prove that the affirmative defense does not exist." Id. (citations omitted). Rather, "the burden of proving each element of an affirmative defense rests on the party that asserts the defense." Id. at 1097 (citing Dorse v. Armstrong World Indus., Inc., 513 So.2d 1265, 1269 n. 5 (Fla.1987)) (additional citations omitted).
Unlike scenarios where conditions precedent are ascertainable on the face of a written contract, such as compliance with paragraph twenty-two of the mortgage or where a promissory note specifically incorporates the HUD regulations into its terms, it is by no means clear that the HUD regulations applicable to federally insured loans apply to the instant loan and litigation. We disagree with Appellants' argument that, simply because the note and mortgage were created utilizing Fannie Mae/Freddie Mac uniform instruments, these regulations summarily apply to this loan. See McMenamin v. Phelan Hallinan, LLP, No. Civ. A. 14-4814, 2015 WL 5515347, at *10 (E.D.Pa. Aug. 20, 2015) (finding that, despite the fact that the mortgage agreement was a "Fannie Mae/Freddie Mac Uniform Instrument," the mortgage lender was not required to "engage in loss mitigation efforts to avoid
Accordingly, we hold that where, as here, it is unclear whether alleged conditions precedent apply, the burden is on the party asserting the existence of the conditions precedent to establish their applicability. Thus, Appellants had the evidentiary burden of proof to establish that sections 203.602 and 203.604 of Title 24 provided conditions precedent that Bank had to satisfy prior to filing suit to foreclose the instant note and mortgage, and we find that Appellants failed to present competent evidence at trial to meet this burden.
Because Appellants failed to establish reversible error as to any of the issues raised, we affirm the final judgment of foreclosure in its entirety.
AFFIRMED.
ORFINGER and EDWARDS, JJ., concur.