The borrowers in Deutsche Bank Nat’l Tr. Co., a v. Roongseang, 2019 IL App (1st) 180948 (Dec. 2, 2019) filed an affirmative defense to a foreclosure alleging the plaintiff-mortgagee failed to provide them with an acceleration notice in accordance with the sections 20 and 22 of the mortgage. The mortgage also provides in section 15: “All notices given by borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means.”
The mortgagee denied failing to send the acceleration notice and then moved for summary judgment arguing that the failure to provide notice was an improper affirmative defense. In the alternative, it argued it had complied with the notice requirements by mailing the acceleration notice via certified mail. The trial court granted summary judgment and a judgment for foreclosure.
Borrowers appealed. They argued, among other things, that summary judgment was improper because the mortgagee failed to provide proof of actual delivery of the acceleration notice. They argued that the mortgage does not presume delivery of an acceleration notice sent via certified mail. The mortgagee was required to provide proof of actual delivery, not proof of mailing, in order to establish compliance with the notice condition precedent.
The appellate court agreed. It noted the clear purpose of section 15 of the mortgage, when read together with the other sections of the mortgage (sections 20 and 22), was to provide the borrower with a notice of default to allow for an opportunity to cure. Section 15 describes two methods by which the mortgagor can prove that notice has been given. First, notice is deemed given when mailed to the borrower by first class mail. Second, if the notice is sent by “other means,” notice is deemed given when actually delivered to the borrower’s notice address. Because the terms “first class mail” and “other means” are not defined in the mortgage, we construe the terms in the context of the mortgage document as a whole.
The US Postal Service defines “certified mail” as an “extra service” that is only available for first class and priority mail. Certified mail is not a class of mail, but a service used to provide “the sender with a mailing receipt and, upon request, electronic verification that an article was delivered or that a delivery attempt was made.” The court, consistent with the findings of other courts, declined to extend the “mailbox” presumption of delivery to certified mail. By undertaking more than the rule required in sending the notice via certified mail, the party sending the certified mail triggered an obligation “to follow through on that method by submitting the return receipt as proof of service.”
Given the distinction between the methods of delivery for first class and certified mail, where the mortgagee chose to send the acceleration notice via certified mail, it was sent by “other means” and proof of actual delivery of the notice is required to establish compliance with the notice provisions in the mortgage. There is no presumption of delivery and the mortgagee must provide the return receipt, or present other competent evidence of actual delivery, in order to prove compliance with the notice requirements of the mortgage. Thus, the mortgagor’s denial that they received notice, and the mortgagee’s failure to produce a return receipt of the certified mail, created a fact issue precluding summary judgment.Download Related Document