Nowlin v. Nationstar Mortgage, LLC

193 So.3d 1043 (2016)

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Nature of the Case

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Facts

BAC Home Loans Servicing (P) filed an amended foreclosure complaint against Ps which alleged that they had defaulted on a mortgage and promissory note that were executed on October 7, 2002. P alleged that the installment payment due on August 1, 2009, was not received, and no subsequent payments had been received. P later transferred its right to enforce the loan to Nationstar (P), and Nationstar (P) was substituted as the plaintiff. Ds testified that P modified their mortgage in July 2009. On July 28, 2009, P issued a letter to Ds which stated, 'We are pleased to advise you that your loan modification has been approved. In order for the modification to be valid, the enclosed documents need to be signed and returned.' Two documents had to be returned: a Step Rate Loan Modification Addendum to Loan Modification Agreement and a Loan Modification Agreement. he modification documents were signed, notarized, and sent back to P via Federal Express. Ds used the Federal Express envelope which was provided to them by P. Ds produced a receipt from Federal Express indicating that the envelope was shipped on August 17 and that it was received on August 18, 2009. Ds were required to send to P cashier's checks for three consecutive mortgage payments beginning on October 1. They were informed that after the third payment was received, the modification would become permanent. Ps introduced a certified check that was cashed by P on September 9 for the first payment that was due on October 1. Two other certified checks were introduced into evidence which had been cashed by P for the payments due on November 1 and December 1. P sent a letter to Ds in December 2009, notifying them that P was going to accelerate their loan because the August 1, 2009, payment had not been received. D was informed that the modification had been canceled in November, and they would have to obtain another modification. The Nowlins sent in the paperwork for the second loan modification, but P claimed that the paperwork was not in their file. Despite the evidence, the trial court ordered foreclosure. Ds appealed.