## Facts

- Borrowers Walter and Valerie Nowlin executed a 2002 note and mortgage serviced by BAC Home Loans Servicing (later succeeded by Nationstar Mortgage, LLC).
- BAC sent a July 28, 2009 letter stating the loan modification was approved and would be valid if the enclosed modification documents were signed and returned using a provided Federal Express envelope.
- The Nowlins signed and notarized the modification documents and sent them via Federal Express; they produced a delivery receipt showing BAC received them.
- The letter directed the Nowlins to begin making payments under the modified terms in October 2009; BAC cashed payments made under the modified terms in November and December 2009.
- In December 2009, BAC asserted the Nowlins had stopped paying under the original loan and claimed it had no record of receiving the modified payments; BAC canceled the modification and accelerated the loan.
- BAC filed a foreclosure action alleging default under the original loan beginning with the August 1, 2009 payment and alleging no subsequent payments were received.
- Nationstar was substituted as plaintiff in 2014; after a bench trial, the circuit court entered a final judgment of foreclosure for Nationstar.
- The written final judgment was entered by a successor judge who did not preside over the bench trial.

## Issues

1. Whether the foreclosure judgment could be based on alleged default under the original note and mortgage where the evidence showed the parties formed and performed under a loan modification.
2. Whether the lender proved compliance with the mortgage’s contractual notice condition precedent to acceleration and foreclosure.
3. Whether a successor judge could enter a final judgment after a bench trial conducted by a different judge without independently evaluating the evidence.

## Decision

- Affirmed the ruling that the lender proved compliance with the contractual notice condition precedent.
- Reversed the final judgment of foreclosure because the evidence established a valid and enforceable loan modification, yet the foreclosure claim and proof proceeded on alleged breach of the superseded original payment terms rather than breach of the modified agreement.
- Reversed on the independent ground that a successor judge who did not hear the trial entered the final judgment, requiring reversal and remand.
- Remanded for further proceedings consistent with the opinion.

## Legal Principles

- A loan-modification contract forms when a lender’s written offer specifies a method of acceptance and the borrowers accept by completing that method; acceptance is effective upon dispatch when acceptance by mailing is contemplated.
- A foreclosure plaintiff must plead and prove default under the operative agreement governing the parties’ obligations; if a valid modification controls, foreclosure cannot rest on default allegations tied to the superseded original payment schedule.
- A successor judge generally may not enter a final judgment based solely on a trial conducted by a predecessor judge where factual findings depend on testimony and credibility, absent an independent evaluation consistent with applicable procedure.

## Conclusion

The appellate court held that the borrowers formed and performed under a binding loan modification accepted by returning the signed documents as instructed, so the lender could not obtain foreclosure based on alleged default under the original loan terms without pleading and proving breach of the modified agreement; the judgment also required reversal because it was entered by a successor judge who did not preside over the trial.


Nowlin v. Nationstar Mortg., LLC, 193 So. 3d 1043 (Fla. 2d DCA 2016)