IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
WILLIAM VON KUEHLMAN,
v. Case No. 5D14-2131
BANK OF AMERICA, N.A., ETC.,
Opinion filed October 30, 2015
Appeal from the Circuit Court
for Citrus County,
Barbara Gurrola, Judge.
Jeremy T. Simons, of Simons & Catey,
P.A., New Port Richey, for Appellant.
Curtis A. Wilson, of McCalla Raymer,
LLC, Orlando and Alan M. Pierce, of
Liebler, Gonzalez & Portuondo, Miami,
William Von Kuehlman (“Borrower”) timely appeals a Final Judgment of
Foreclosure in favor of Bank of America, N.A. (“Lender”).1 He raises five arguments, all
of which rest on this Court’s legal determination of whether he entered into a valid
modification of his mortgage. We agree that he did, and reverse the final judgment—
which was premised upon the erroneous conclusion that the parties did not agree to
modify the mortgage.
The following facts were established at trial by Lender’s representative and are not
disputed. Lender offered Borrower a modification and the terms of the offer required him
to accept it by a certain day. Borrower executed the agreement but returned it late, along
with the first modified payment, which was also late. Borrower then made six additional
payments in the modified amount, all of which were late, but which Lender accepted and
deposited. At that point, Lender’s “investor” (Fannie Mae or Freddie Mac), which was not
a party to the contracts, instructed Lender to “pull the plug on” (or “not accept”) the
modification. Then, after accepting two additional modified payments, Lender
accelerated the mortgage, gave Borrower an opportunity to cure based on the original
mortgage, not the modification, and refused to accept additional modified payments.
Lender sued alleging breach of the original note and mortgage.
Lender argues that no modification occurred because of Borrower’s late
acceptance.2 However, Borrower’s late acceptance of the modification operated as a
counteroffer. See 2 Williston on Contracts §§ 6:56-6:57 (4th ed., updated May 2015); see
also Grant v. Lyons, 17 So. 3d 708, 710-11 (Fla. 4th DCA 2009) (“Acceptances can turn
into counteroffers either by adding additional terms or not meeting the terms of the original
offer.”). On these undisputed facts, we conclude as a matter of law that Lender accepted
the counteroffer by a combination of its many months of silence and its acceptance of
nine monthly payments in the amount specified in the modification agreement. Grant; 17
So. 3d at 710-11; see also 2 Williston on Contracts §§ 6.1-6.3 (4th ed., updated May
2015). As argued by Borrower, because the parties entered a modification agreement
following Borrower’s alleged breach of the original mortgage, Lender could only foreclose
by alleging and proving a breach of the modification agreement. It failed to plead that
theory. Nor was the theory tried by consent.
LAWSON, C.J., TORPY and BERGER, JJ., concur.
1 Bank of America succeeded BAC Home Loans Servicing, L.P., which succeeded
the original lender, Countrywide Home Loans, Inc. Standing is not an issue. These
entities are referred to collectively as “Lender.”
2 Lender made a different argument below, contending that Borrower did not
accept its modification offer because his monthly modified payments were all late.
Borrower correctly countered that Lender was really arguing that Borrower breached the
modification agreement, which Lender did not plead in its Amended Complaint.