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Spencer v. DITECH FINANCIAL, LLC | FL 2DCA- Because EverHome failed to show that it satisfied the condition precedent of giving notice prior to acceleration, we must reverse and remand for the trial court to enter an order of involuntary dismissal.

Spencer v. DITECH FINANCIAL, LLC | FL 2DCA- Because EverHome failed to show that it satisfied the condition precedent of giving notice prior to acceleration, we must reverse and remand for the trial court to enter an order of involuntary dismissal.

 

ISAIAH L. SPENCER and SHATIKA L. SPENCER, Appellants,
v.
DITECH FINANCIAL, LLC; CITIBANK, NATIONAL ASSOCIATION successor by merger to CitiBank, FSB; CITY OF TAMPA, FLORIDA; RIVERWALK AT WATERSIDE ISLAND TOWNHOMES HOMEOWNERS ASSOCIATION, INC.; WATERSIDE COMMUNITY ASSOCIATION, INC., Appellees.

Case No. 2D16-4817.
District Court of Appeal of Florida, Second District.
Opinion filed April 4, 2018.
Appeal from the Circuit Court for Hillsborough County; Sandra Taylor, Senior Judge.

Mark P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of Lord Scott, PLLC, Tampa, for Appellants.

Jonathan L. Blackmore and John D. Cusick of Phelan, Hallinan, Diamond & Jones, PLLC, Fort Lauderdale, for Appellee Ditech Financial, LLC.

No appearance for remaining Appellees.

KHOUZAM, Judge.

Isaiah and Shatika Spencer appeal the final judgment of foreclosure entered against them and in favor of EverHome Mortgage Company following a bench trial. Ditech Financial, LLC, was later substituted as party plaintiff for EverHome. We reverse and remand for the trial court to enter an order of involuntary dismissal because EverHome, Ditech’s predecessor in interest, failed to establish as a condition precedent to filing suit that the Spencers were given notice of default as required by paragraph 22 of the mortgage.

The Spencers executed the note and mortgage on March 28, 2003. Federal National Mortgage Association was the lender. Paragraph 22 of the mortgage provided that prior to acceleration, the lender must give the borrower notice and an opportunity to cure the default. Paragraph 15 provided that any such notice must be written and “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.”

In 2010, EverHome filed a foreclosure complaint against the Spencers. EverHome alleged that it was the servicer of the loan and the holder of the note. EverHome also alleged generally that all conditions precedent to the acceleration of the note and mortgage and the filing of the foreclosure suit had been fulfilled. The Spencers filed an answer denying that the conditions precedent had been met and an affirmative defense alleging that EverHome had failed to give them notice and an opportunity to cure as required.

At trial, EverHome admitted a default letter from EverHome to Mr. Spencer through the testimony of Ms. Knight, an employee of Ditech. Ms. Knight testified to the general industry standards and practices followed by servicers such as Ditech and EverHome to advise borrowers that their loans are in default. She identified the default letter addressed to Mr. Spencer and described the process by which the letter was generated and kept in the ordinary course of business.

In addition to the default letter itself, Ms. Knight’s testimony was the only evidence that EverHome provided to show that the letter had been sent to the Spencers. Throughout Ms. Knight’s testimony, Spencer repeatedly objected based on hearsay, arguing that Ms. Knight lacked personal knowledge to testify about EverHome’s routine business practices because she was not an employee of EverHome. The court overruled Spencer’s objections, and Ms. Knight testified that pursuant to EverHome’s procedure and policy, once a letter is generated it is mailed. But she explained that her knowledge of these procedures and policies was based on “training.” And when pressed, she admitted that this “training” consisted of informally discussing EverHome’s policies and procedures with coworkers who currently worked for Ditech but had previously worked for EverHome.

Specifically, Ms. Knight testified as follows: “I have spoken with EverHome employees who are prior employees of EverHome, as we are instructed to by our supervisor as part of training because we are not going to travel every day to Jacksonville to sit down with someone when we have questions.” Ms. Knight admitted that no such discussions about this loan or any other loan had taken place prior to 2014, when the service transfer occurred—years after the default letter, dated June 17, 2010, had been generated by EverHome. She further admitted that she had never worked for EverHome, had never sent default letters on behalf of EverHome, and had not read EverHome’s written policies and procedures from June 2010. Ms. Knight admitted that she was not personally involved in sending the default letter at issue in this case and that she did not have any documents other than the letter itself to show that the letter was sent.

This evidence was insufficient to show that the default letter was actually sent. “The fact that a document is drafted is insufficient in itself to establish that it was mailed.” Allen v. Wilmington Tr., N.A., 216 So. 3d 685, 687-88 (Fla. 2d DCA 2017); see also Edmonds v. U.S. Bank Nat’l Ass’n, 215 So. 3d 628, 630 (Fla. 2d DCA 2017) (citing Allen with approval). Rather, “mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt.” Allen, 216 So. 3d at 688.

Testimony regarding a company’s routine business practices may establish a rebuttable presumption that the default letter was mailed. Id. (citing § 90.406, Fla. Stat. (2014)). But the witness must have personal knowledge of the company’s general mailing practice—meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company’s routine practice for mailing letters. See id.; Edmonds, 215 So. 3d at 630; see also CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016) (holding that there was sufficient evidence to establish mailing based on routine business practices where witness testified that she had personally observed coworkers generate breach letters and deliver them to the mail room to be collected by the postal service). Here, Ms. Knight admitted that she was never employed by EverHome and did not have firsthand knowledge of EverHome’s mailing practices as of the date the default letter was generated. Therefore, her testimony was insufficient to establish that the default letter was mailed.

Ditech relies on JPMorgan Chase Bank National Ass’n v. Pierre, 215 So. 3d 633 (Fla. 4th DCA 2017), and Bank of America, N.A. v. Delgado, 166 So. 3d 857 (Fla. 3d DCA 2015), to suggest that Ms. Knight’s testimony was sufficient to establish mailing. These cases do not apply here because they addressed the sufficiency of evidence demonstrating an entity’s boarding process to establish the admissibility of documents like default letters under the business records exception to the hearsay rule, as opposed to the sufficiency of evidence demonstrating an entity’s routine business practices to establish that a default letter was mailed. See Allen, 216 So. 3d at 687Pierre, 215 So. 3d at 637-39Delgado, 166 So. 3d at 859. It is true that in establishing admissibility under the business records exception, there is no requirement that the foundational witness be employed by the business whose records are at issue at the time the records were made. See Delgado, 166 So. 3d at 860. And basic familiarity with the previous servicer or lender’s practices for generating, storing, and sending a default notice in the normal course of business is all that is required to establish the admissibility of a default notice under the business records exception. See Pierre, 215 So. 3d at 638-39 (citing Wells Fargo Bank, N.A. v. Balkissoon, 183 So. 3d 1272, 1277 (Fla. 4th DCA 2016)). But the admissibility of the default letter is not at issue in the instant case.

Because EverHome failed to show that it satisfied the condition precedent of giving notice prior to acceleration, we must reverse and remand for the trial court to enter an order of involuntary dismissal.

Reversed and remanded with instructions.

ROTHSTEIN-YOUAKIM, J., Concurs.

SALARIO, J., Concurs specially.

SALARIO, Judge, Specially concurring.

The Spencers argue in this appeal that the evidence was insufficient to sustain the judgment. They correctly point out that EverHome’s sole trial witness, Ms. Knight, lacked any personal knowledge of EverHome’s routine practice concerning the mailing of paragraph 22 letters and that without her testimony the evidence was insufficient as a matter of law to support a finding that such a letter was mailed to them. I agree with the reasoning of and the result reached by the majority, including the instruction that the trial court enter an order of involuntary dismissal instead of hold a new trial on remand, because I think as the majority does that both are compelled by our decisions in Edmonds, 215 So. 3d at 631, and Allen, 216 So. 3d at 688. See also Knight v. GTE Fed. Credit Union, 43 Fla. L. Weekly D348 (Fla. 2d DCA Feb. 14, 2018). I write to express my growing unease with what we are saying in foreclosure cases about proceedings on remand when the plaintiff as appellee in our court has failed to prove at trial an element of or condition precedent to bringing the foreclosure action.

Outside the foreclosure context, our court routinely follows the general rule that a party that fails to meet its burden of proof in the trial court does not, when we reverse a judgment in its favor, get a second bite at the apple by way of a new trial or hearing on remand. See, e.g., Asset Mgmt. Holdings, LLC v. Assets Recovery Ctr. Invs., LLC, 43 Fla. L. Weekly D458 (Fla. 2d DCA Feb. 23, 2018); Airsman v. Airsman, 179 So. 3d 342, 345 (Fla. 2d DCA 2015)Carlough v. Nationwide Mut. Fire Ins. Co., 609 So. 2d 770, 771-72 (Fla. 2d DCA 1992) (citing In re Forfeiture of 1987 Chevrolet Corvette, 571 So. 2d 594, 596 (Fla. 2d DCA 1990)). This is as it should be: The interests of the parties and the judicial system in finality and in avoiding drawn-out, expensive, piecemeal litigation require that the parties and the courts regard the trial as the brass ring and not as the first step of an odyssey to an eventual result many proceedings away. See Carlough, 609 So. 2d at 772; Morton’s of Chi., Inc. v. Lira, 48 So. 3d 76, 79-80 (Fla. 1st DCA 2010). Thus, although we have departed from the rule when a party that won in the trial court was denied a fair opportunity to present its full case during the first trial, see Elder v. Farulla, 768 So. 2d 1152, 1155 (Fla. 2d DCA 2000), the default position is that there is no new trial when a party fails to prove its case and we reverse a judgment in its favor on appeal. My own inclination is that the interests served by the rule demand that a party present compelling equitable circumstances to justify a departure from this default position. See Morton’s of Chi., 48 So. 3d at 80. And I am inclined to adhere to that standard in circumstances where, as here, the party’s proof was rendered insufficient by our determination on appeal that the only evidence it offered to prove a controlling point on which it bore the burden of proof was not admissible.

Something different, however, seems to be happening in foreclosure cases. We have been determining whether to grant a new trial according to considerations that either appear alien to those that underlie the general rule or that are not clearly tied to a legal principle we can apply across cases (or both). For example, in cases where we reverse a judgment of foreclosure because a plaintiff failed to adduce legally sufficient evidence proving the amount of the defendant’s indebtedness—an element of its claim for foreclosure[1]—our most recent cases hold that a new trial is proper where a plaintiff has introduced “some evidence” of that amount, either admissible or inadmissible, and that involuntary dismissal is required when it has “failed to offer any evidence” of that amount. Paeth v. U.S. Bank Nat’l Ass’n, 220 So. 3d 1273, 1275 (Fla. 2d DCA 2017) (emphasis in original) (holding that plaintiff was entitled to a new trial on the amount of indebtedness where it introduced some evidence of the amount, but the evidence was legally insufficient); see also Evans v. HSBC Bank, USA, Nat’l Ass’n, 223 So. 3d 1059, 1063-64 (Fla. 2d DCA 2017) (characterizing amount of indebtedness as “damages” and remanding for new trial where plaintiff presented “some” evidence of indebtedness, but the evidence was not admissible). The cases do not, however, explain whether or how this some-evidence-no-evidence test relates to the general rule against allowing new trials when a plaintiff fails to meet its burden of proof, the policies underlying that rule, or any compelling equity that would justify making an exception to it in a particular case. Nor do they explicitly state any principle that limits that test to a foreclosure plaintiff’s proof of the amount of indebtedness—as distinguished from, say, standing, default, or compliance with paragraph 22—or, indeed, that limits the test to foreclosure cases at all.

In other decisions, our consideration of whether to remand for a dismissal or a new trial when a foreclosure plaintiff has failed to prove its case appears to have hinged on whether the trial court erroneously admitted some evidence offered by the plaintiff. See, e.g., Heller v. Bank of Am., N.A., 209 So. 3d 641, 645 (Fla. 2d DCA 2017) (remanding for new trial where trial court erroneously admitted a copy of a note to prove its contents in violation of the best evidence rule); Sas v. Fed. Nat’l Mortg. Ass’n, 112 So. 3d 778, 780 (Fla. 2d DCA 2013) (remanding for new trial where proof of amount due was based on inadmissible evidence the trial court erroneously admitted). These are cases where, as here, had the inadmissible evidence not been admitted, the remaining evidence (if any) would have been insufficient to permit a judgment in the plaintiff’s favor.[2] Although we have not explicitly stated what considerations drive the result in those circumstances, allowing a new trial where the trial court has erroneously admitted some of the plaintiff’s evidence and the remaining evidence is insufficient might be linked to the notion that the plaintiff was denied a fair opportunity to present its case— i.e., that the trial court’s erroneous admission of some of the plaintiff’s evidence induced the plaintiff not to present other evidence that would have been admissible and that would have proved the same point.

But if that is the basis for these decisions, we have not said so. Nor have we explained why there should be a categorical distinction between pure sufficiency problems and admissibility problems that lead to sufficiency problems. On the contrary, other cases seem to suggest that determining whether a new trial is necessary in a case involving an admissibility issue that creates a sufficiency problem requires a fact-specific inquiry rather than a categorical rule. See, e.g., Mathis v. Nationstar Mortg., LLC, 227 So. 3d 189, 193 (Fla. 2d DCA 2017)(remanding for involuntary dismissal where trial court erroneously allowed witness to testify, over objection, to the contents of an allonge in violation of the best evidence rule and the original was not produced); Holt v. Calchas, LLC, 155 So. 3d 499, 507 (Fla. 4th DCA 2015) (remanding for involuntary dismissal where plaintiff’s only evidence that a paragraph 22 letter was sent was hearsay that was erroneously admitted over objection); Burdeshaw v. Bank of N.Y. Mellon, 148 So. 3d 819, 826-27 (Fla. 1st DCA 2014) (reversing foreclosure judgment based on an evidentiary error and remanding for order of involuntary dismissal where remand for new trial was inappropriate under the facts of the case).

This case provides a good example of why a categorical distinction between pure sufficiency and admissibility cases may not make sense. Here, it is hard to imagine that if the trial court had correctly excluded Ms. Knight’s routine practice testimony, EverHome would have been prepared to produce other admissible evidence that the paragraph 22 letter was mailed to the Spencers. It seems obvious that a person without personal knowledge of a party’s routine business practice cannot testify as to that practice or parrot the hearsay statements of others to establish it. See §§ 90.604, .802, Fla Stat. Yet Ms. Knight was the only witness EverHome decided to bring to the trial, and her testimony established that she had no knowledge to impart about the mailing of the paragraph 22 letter apart from her inadmissible testimony concerning routine practice. Had the trial court excluded that evidence, to which the Spencers contemporaneously objected, it seems quite certain that EverHome would simply have failed to prove compliance with paragraph 22. And had the trial court rendered a judgment of foreclosure notwithstanding that failure of proof, we would likely remand for an order of involuntary dismissal under the rule that a plaintiff that fails to prove its case does not get a second bite at the apple on remand. Granting a new trial here simply because the trial court admitted some plainly inadmissible testimony does not seem to protect legitimate reliance on a trial court’s evidentiary ruling; rather, it seems to reward either (or both) a litigant’s insufficient trial preparation or a strategic decision that it might be able to convince a court to admit clearly inadmissible evidence—precisely the kinds of results the general rule against granting a new trial when a party fails to prove its case the first time around is designed to avoid.[3]

In the interest of brevity, I am oversimplifying a bit. There is more to our decisions on the scope of remand in foreclosure cases than this opinion allows. My point, however, is that we are making decisions about when a foreclosure plaintiff gets an involuntary dismissal or a new trial based on considerations that do not bear an obvious relationship to the rule governing the consequences of a party’s failure to meet its burden of proof that we apply in cases other than foreclosures and that we may not be able to limit to the foreclosure context on a principled basis. Someday, for instance, a lawyer is going to ask that we apply the some-evidence-no-evidence rule in a garden variety contract or tort case, a result we may well consider unadvisable. At least on the basis of what our opinions say, “that is a foreclosure rule” may be the only answer we are able to give for not extending it. But that answer is not going to be a credible or persuasive one. Speaking for myself, I would be open to examining these issues in an appropriate case as a full court with the object of settling on a general approach that we can apply on a principled basis across cases.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

[1] See Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979) (stating that proof of the amount due is necessary to establish entitlement to foreclose); see also Liberty Home Equity Sols., Inc. v. Raulston, 206 So. 3d 58, 60 (Fla. 4th DCA 2016) (stating that proof of the amount due is part of a foreclosure plaintiff’s prima facie case); Bank of Am., N.A. v. Delgado, 166 So. 3d 857, 859 (Fla. 3d DCA 2015)(characterizing the amount of indebtedness as an “element” of the foreclosure plaintiff’s case).

[2] Although it is commonly assumed in the civil context that a new trial is the correct instruction on remand in such cases, I have as yet been unable to locate any decision of ours that so holds. But see Walker v. State, 988 So. 2d 6, 10 (Fla. 2d DCA 2007) (Altenbernd, J., concurring) (stating in a concurring opinion that this has been a general practice in civil cases), quashed on other grounds by State v. Walker, 992 So. 2d 232 (Fla. 2008). As the cases cited in the text demonstrate, there are circumstances in which our court and others have declined to afford a new trial where a foreclosure plaintiff’s only evidence on a point was inadmissible, leaving the balance of the evidence legally insufficient. Such circumstances are distinguishable from the more common circumstance in which a party convinces a trial court to admit inadmissible evidence and the resulting error is harmful, notwithstanding the fact that other admissible evidence produced by that party might be sufficient to sustain a judgment in that party’s favor. In that situation, we direct a new trial not to protect some interest of the party that offered the inadmissible evidence, but because we cannot say that the admission of that evidence did not affect the outcome of the trial. See, e.g., Soto v. McCulley Marine Servs., Inc., 181 So. 3d 1223, 1226 (Fla. 2d DCA 2015)Swanson v. Robles, 128 So. 3d 915, 919-20 (Fla. 2d DCA 2013).

[3] My instinct on this may be wrong. Perhaps there is a solid doctrinal reason for categorically regarding pure sufficiency cases differently from cases involving an admissibility problem, or maybe it is just more desirable to have a categorical rule that grants a new trial to avoid having to engage in this inquiry in every case. My main concern, as explained in the text, is that we are not really stating a legal principle that drives the result in these cases.

 

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In re Woide | Failla and Taylor are Alive and Well: Eleventh Circuit again Confirms that Debtors Cannot Retain Secured Property Absent Reaffirmation or Redemption

In re Woide | Failla and Taylor are Alive and Well: Eleventh Circuit again Confirms that Debtors Cannot Retain Secured Property Absent Reaffirmation or Redemption

Lexology-

For the third time in less than two years, the Eleventh Circuit Court of Appeals has ruled that a chapter 7 debtor who does not reaffirm the secured debt or redeem the property must surrender the property. In re Woide, No. 17-10776 (11th Cir. Apr. 5, 2018).

In Woide, the debtors filed a chapter 13 bankruptcy petition, and on schedule A, listed their real property and stated: “to be surrendered.” The case was later converted from chapter 13 to 7, and the debtors did not file any statement of intention with respect to the property. After the close of the debtors’ bankruptcy case, the secured creditor initiated a foreclosure proceeding, which the debtors vigorously defended. The debtors also initiated other, separate lawsuits in state and federal court in an attempt to invalidate the note and mortgage, and they attempted to rescind the note and mortgage under the Truth in Lending Act, 15 U.S.C. § 1635. The bankruptcy court entered an order reopening the bankruptcy case and compelling surrender of the real property, specifically prohibiting the debtors from taking “any action to impede, contest, or dispute the validity or enforceability of the note and mortgage . . . including, but not limited to, any action to rescind the note and mortgage pursuant to the Truth in Lending Act, 15 U.S.C. 1635 . . . .”

After the bankruptcy court ordered the debtors to surrender the property, the debtors appealed the bankruptcy court’s order compelling surrender to the district court, and the district court affirmed. In re Woide, 2017 WL 78798, 6:16-cv-1484 (M.D. Fla. Jan. 9, 2017). The debtors then appealed to the Eleventh Circuit. In re Woide, No. 17-10776 (11th Cir. 2017). The primary issue on appeal was whether the debtors, who did not file a statement of intention regarding their property, but represented during the course of their bankruptcy case that they would surrender their house, and who did not otherwise reaffirm the mortgage or redeem the property during the course of their bankruptcy case, were still required to surrender the property.

[LEXOLOGY]

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Radosevich v. BANK OF NEW YORK MELLON | FL 3DCA- We reverse and remand for the trial court to conduct a further hearing, as may be appropriate, to determine whether Radosevich remains entitled to an award of attorney’s fees as the prevailing party

Radosevich v. BANK OF NEW YORK MELLON | FL 3DCA- We reverse and remand for the trial court to conduct a further hearing, as may be appropriate, to determine whether Radosevich remains entitled to an award of attorney’s fees as the prevailing party

 

Katherine Radosevich, Appellant,
v.
The Bank of New York Mellon, Appellee.

Case No. 3D16-1880.
District Court of Appeal of Florida, Third District.
Opinion filed April 4, 2018.
An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 09-48177, Monica Gordo, Judge.

Legal Save, and Jeffrey H. Papell, for appellant.

McGlinchey Stafford, PLLC, and Karin L. Posser, N. Mark New, II and William L. Grimsley, (Jacksonville), for appellee.

Before EMAS, FERNANDEZ and LUCK, JJ.

EMAS, J.

INTRODUCTION

Katherine Radosevich appeals from the trial court’s order denying her motion for trial-level attorney’s fees as the “prevailing party” in the mortgage foreclosure action below. For the reasons that follow, we reverse and remand for the trial court to conduct a further hearing, as may be appropriate, to determine whether Radosevich remains entitled to an award of attorney’s fees as the prevailing party.

FACTS AND BACKGROUND

On June 25, 2009, the Bank of New York Mellon, etc. (“BONY”) filed a two-count complaint against Radosevich, seeking (1) to foreclose on a note and mortgage; and (2) to reclaim a lost note. Attached to the complaint was a copy of a unendorsed note, naming Countrywide Home Loans, Inc. as the lender. More than a year after the complaint was filed, BONY filed another copy of the original note, which this time contained an undated blank endorsement, along with an assignment dated July 21, 2009, but with an effective date of May 19, 2009.

The case proceeded to non-jury trial on May 7, 2013. The court denied BONY’s request to admit the loan payment history, based upon a determination that BONY’s witness was not credible. After BONY rested its case, counsel for Radosevich[1] moved for involuntary dismissal, arguing there were discrepancies in the copy of the note filed with the complaint and the later-filed copy of the note, and that the mortgage assignment was dated after the complaint was filed. The trial court granted the motion, and entered an order of dismissal. The court later denied BONY’s motion for reconsideration or new trial, and BONY appealed the dismissal order to this court (Case No. 3D13-2280).

In the meantime, Radosevich moved for trial court attorney’s fees and costs as the prevailing party, pursuant to section 57.105(7), Florida Statutes[2] and a prevailing party provision in the note and mortgage. While the appeal of the dismissal order was still pending, an agreed order was entered below on Radosevich’s motion for trial court attorney’s fees and costs, which stated:

1. Defendant’s Amended Motion for Attorney’s Fees and Costs is GRANTED as to entitlement pending the outcome of the appeal.

2. The parties are in agreement that no hearing regarding the amount of attorney’s fees shall be heard until the appeal has been resolved.

Following the completion of briefing in the appeal of the dismissal order, BONY filed a notice of voluntary dismissal, which was recognized by this court.[3]Thereafter, this court, in an unelaborated order, denied Radosevich’s motion for appellate fees and costs.

Back in the trial court, Radosevich sought a hearing to determine the reasonable amount of trial-level attorney’s fees she should be awarded, pursuant to the court’s earlier order granting entitlement. BONY objected, and the trial court held a non-evidentiary hearing on the issue. At the hearing, BONY argued that Radosevich’s entitlement to fees and costs had not yet been established because the trial court’s prior order granted entitlement “pending the outcome of the appeal,” and, because the appeal had been voluntarily dismissed due to a short sale, neither party was a “prevailing party” entitled to an award of fees and costs.

The trial court denied Radosevich’s entitlement to fees and costs, determining that “the clear and unambiguous language in the Entitlement Order . . . requires the Court to consider and make a determination as to the outcome of the Appeal,” and thus, under the case of Kelly v. BankUnited FSB, 159 So. 3d 403 (Fla. 4th DCA 2015), “the outcome of the Appeal was a voluntary dismissal of the Appeal by Plaintiff after the closing of a short sale,” and “Papell is not entitled to an award of trial court attorney’s fees and costs.” This appeal followed.

ANALYSIS

We generally review an order on a motion for attorney’s fees for an abuse of discretion. Lopez v. Dep’t of Rev., 201 So. 3d 119 (Fla. 3d DCA 2015). However, “[w]here entitlement rests on the interpretation of a statute or contract, our review is de novo.” Raza v. Deutsche Bank Nat. Trust Co., 100 So. 3d 121, 123 (Fla. 2d DCA 2012). See also, Kelly, 159 So. 3d at 405.

Radosevich argues on appeal that the trial court erred in determining she was not the prevailing party in the trial court because she did prevail below and nothing that happened on appeal, including BONY’s voluntary dismissal of its appeal, altered her status as prevailing party below.[4]

In Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 810 (Fla. 1992), the Florida Supreme Court held that “the fairest test to determine who is the prevailing party is to allow the trial judge to determine from the record which party has in fact prevailed on the significant issues tried before the court.”

In the case before us, the trial court, relying on Kelly, 159 So. 3d at 407,determined that Radosevich was not entitled to an award of fees and costs because, despite its voluntary dismissal of the appeal, “[BONY] received considerable proceeds in exchange for the satisfaction of the underlying mortgage and note and Radosevich lost her home and received no proceeds from the sale.”

In Kelly, our sister court considered a case which similarly involved a foreclosure, final judgment, an appeal, and a subsequent voluntary dismissal by the bank following a short sale. In that case, the Fourth District held that the trial court did not abuse its discretion in determining that the property owner was not entitled to attorney’s fees under section 57.105(7) because, under the “unique circumstances” of the case, “neither party substantially prevailed.” Id. at 404.

As the trial court acknowledged in its order denying Radosevich’s entitlement, there are some procedural differences between this case and Kelly: for example, in Kelly, unlike here, the bank prevailed below (and obtained a final judgment) in the trial court, and following the short sale, voluntarily dismissed the lower court case (not the appeal); further, in Kelly there was no entitlement order entered by the trial court prior to the bank’s voluntary dismissal. By contrast, in our case, Radosevich was the prevailing party below, and the trial court had already entered an entitlement order while BONY’s appeal of the involuntary dismissal order was pending on appeal.

However, we cannot ignore the point made by BONY that, regardless of Radosevich’s status as the prevailing party below, post-judgment actions or events arguably altered that status, permitting the trial court to determine whether such actions or events require reconsideration of its interlocutory entitlement order and Radosevich’s status as the prevailing party. As the Florida Supreme Court held in Moritz, 604 So. 2d at 810, the party that prevailed for purposes of entitlement to attorney’s fees is “the party prevailing on the significant issues in the litigation.” Thus, where litigation ultimately ends in a proverbial “tie,” with each party prevailing in part and losing in part on the significant issues in the litigation, a trial court may properly determine that neither party has prevailed for purposes of entitlement to attorney’s fees. Loy v. Loy, 904 So. 2d 482, 484 (Fla. 3d DCA 2005). And while we acknowledge the general rule that “when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party,” Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 919 (Fla. 1990), a court may, under appropriate circumstances, look beyond a voluntary dismissal and consider other facts of the litigation in determining whether a party is the prevailing party for purposes of entitlement to attorney’s fees. Padow v. Knollwood Club Ass’n, Inc., 839 So. 2d 744, 745 (Fla. 4th DCA 2003). Courts should “look to the substance of litigation outcomes—not just procedural maneuvers—in determining the issue of which party has prevailed in an action.” Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1041 (Fla. 2d DCA 2013). In the instant case, the trial court was permitted to consider whether, upon return of this cause to the trial court following BONY’s voluntary dismissal of its appeal, Radosevich remained the prevailing party at the trial level, such that she was still entitled to an award of attorney’s fees.

Nonetheless, while we hold that the trial court had the authority to reconsider its earlier entitlement order, and to consider whether actions and events occurring during the pendency of the prior appeal affected that earlier determination, the fact remains that the court must make such a determination based upon the record before it, Moritz, 604 So. 2d at 810, and in this case, the record was simply inadequate for the trial court to make such a determination. In reaching its conclusion that Radosevich was no longer a prevailing party, the trial court relied upon the “fact” that a short sale took place on the foreclosed property. However, the trial court took no testimony and received no evidence regarding the existence, terms or effect of a purported short sale. Mere representations and argument of counsel do not constitute evidence. Geralds v. State, 111 So. 3d 778, 795 n.16 (Fla. 2010) (quoting Collins Fruit Co. v. Giglio, 184 So. 2d 447, 449 (Fla. 2d DCA 1966)) (noting “it is axiomatic that the arguments of counsel are not evidence.”); State v. T.A., 528 So. 2d 974 (Fla. 2d DCA 1988).

CONCLUSION

We reverse and remand for the trial court to conduct a further hearing, as may be appropriate, to determine whether Radosevich remains entitled to an award of attorney’s fees as the prevailing party, and for further proceedings consistent with this opinion.

Not final until disposition of timely filed motion for rehearing.

[1] Radosevich was represented throughout the foreclosure proceedings below, and on appeal, by attorney Jeffrey H. Papell, with whom she had entered into a representation agreement. That agreement provided that Papell’s firm “may seek attorney’s fees from Plaintiff under applicable law should Client prevail or the case is dismissed.” Under the terms of this agreement, Radosevich also confirmed that she had “been told and agree that I cannot waive, settle, resolve, assign or otherwise transfer or dispose of the Firms’ claim for attorney’s fees and costs and that I have assigned and transferred to [the Firm] any right I may have to recover unpaid attorney’s fees and costs.”

[2] Section 57.105(7) provides: “If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.” Thus, “[t]he statute makes a unilateral contract clause for attorney’s fees bilateral in effect.” Mihalyi v. LaSalle Bank, N.A., 162 So. 3d 113, 115 (Fla. 4th DCA 2014). It is undisputed in this case that the mortgage contract provided for an award of attorney’s fees to BONY in the event it prevailed in a foreclosure action against Radosevich. Thus, pursuant to section 57.105(7), Radosevich would also be entitled to her attorney’s fees in the event that she is determined to be the prevailing party.

[3] There are no settlement or other supporting documents in the record before us, and according to Papell, if any such settlement occurred, it was done without any notice to Papell. In its notice of voluntary dismissal, BONY represented that it had approved a short sale of Radosevich’s property.

[4] We disagree with Radosevich that the trial court was without jurisdiction to reconsider its earlier order determining entitlement to fees. The entitlement order was an interlocutory order, determining only entitlement, and not the amount of reasonable fees to be awarded, and thus, the trial court had jurisdiction to reconsider, and alter, its earlier order. See Mills v. Martinez, 909 So. 2d 340 (Fla. 5th DCA 2005).

 

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EMERALD ESTATES COMMUNITY ASSOCIATION v. US Bank N.A. |  FL 4DCA – . As counsel for Emerald Estates explained at the hearing, Emerald Estates requested these costs and fees because U.S. Bank failed to make the required payments after it purchased the property.

EMERALD ESTATES COMMUNITY ASSOCIATION v. US Bank N.A. | FL 4DCA – . As counsel for Emerald Estates explained at the hearing, Emerald Estates requested these costs and fees because U.S. Bank failed to make the required payments after it purchased the property.

 

EMERALD ESTATES COMMUNITY ASSOCIATION, Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION, Appellee.

No. 4D17-1278.
District Court of Appeal of Florida, Fourth District.
April 4, 2018.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carol Lisa Phillips, Judge; L.T. Case No. CACE15000488.

Michael T. Ross of the Law Office of Michael T. Ross, P.A., Hollywood, for appellant.

Alexzander D. Gonano of Gonano & Harrell, Fort Pierce, for appellee.

KLINGENSMITH, J.

At a foreclosure sale in March of 2014, U.S. Bank purchased property governed by Emerald Estates Community Association. Months later, Emerald Estates sent U.S. Bank an estoppel letter claiming that pursuant to section 720.3085(2)(c), Florida Statutes (2016), it was entitled to twelve months of unpaid assessments that accrued prior to the bank taking title, and demanding reimbursement of costs and attorney’s fees for collection efforts associated with unpaid assessments.

After U.S. Bank paid the requested amount under protest, it filed a complaint against Emerald Estates, and asserted that it was only required to pay for twelve months of unpaid assessments that accrued prior to it taking title. U.S. Bank denied responsibility for paying any costs or attorney’s fees for collection efforts associated with unpaid assessments that accrued after it acquired title. The trial court ultimately agreed and entered final summary judgment in favor of U.S. Bank. The court relied on Catalina West Homeowners Ass’n, Inc. v. Federal National Mortgage Ass’n, 188 So. 3d 76 (Fla. 3d DCA 2016), and reasoned that Emerald Estates was not permitted to charge for costs and attorney’s fees “that accrued prior to [U.S. Bank] taking title on March 4, 2014.” (Emphasis added).

We agree that based on section 720.3085(2)(c) Emerald Estates was not entitled to costs and attorney’s fees that accrued prior to U.S. Bank acquiring title. See Catalina W. Homeowners Ass’n, Inc., 188 So. 3d at 81 (holding that the homeowner’s association was not entitled to “interest, late fees, attorney’s fees and costs from FNMA” that were incurred prior to FNMA acquiring title to the property).

However, Emerald Estates was claiming reimbursement for costs and attorney’s fees incurred in collection efforts associated with unpaid assessments accruing after U.S. Bank acquired title. As counsel for Emerald Estates explained at the hearing, Emerald Estates requested these costs and fees because U.S. Bank failed to make the required payments after it purchased the property. U.S. Bank presented no evidence at the hearing regarding when these fees and costs actually accrued.

Thus, because a genuine issue of material fact remained as to whether the requested costs and fees were associated with unpaid assessments accruing before or after U.S. Bank acquired the property, we reverse the entry of summary judgment and remand for further proceedings. See Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479-80 (Fla. 4th DCA 2006) (“The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.”).

Reversed and remanded for further proceedings.

WARNER and CIKLIN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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TFH 4/8/2018 | Congratulations, You Defeated Plaintiff’s Motion for Summary Judgment, But Do You Know The Ten Things You Need To Do Next?

TFH 4/8/2018 | Congratulations, You Defeated Plaintiff’s Motion for Summary Judgment, But Do You Know The Ten Things You Need To Do Next?

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

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Sunday – April 8, 2018

.

 ———————
Congratulations, You Defeated Plaintiff’s Motion for Summary Judgment, But Do You Know The Ten Things You Need To Do Next?

 

 

 

 

—————————-
Homeowners in growing numbers lately, even pro se, have suddenly been defeating summary judgment in foreclosure proceedings or securing appellate reversals of prior summary judgments remanded for trial.

As our listeners know, there are many foolproof ways of challenging the validity of default notices, general loan ledgers, and ownership of promissory notes at filing inception, which we have addressed on prior shows, one or more usually sufficient to defeat summary judgments once you know how easily it can be done, depending of course always on how knowledgeable your foreclosure Judge is.

Just last week, I had a visit from a homeowner who appearing in court pro se defeated summary judgment in two separate foreclosure cases of his, but admitted being dumbfounded regarding what he needed to do next, anticipating going to trial.

Today’s show addresses that precise question, having defeated summary judgment, what comes next?

Although usually the issues will be the same at trial as they were at the summary judgment hearing, there is one big difference.

In defeating summary judgment, you need show only that there are material issues in genuine dispute.

But at trial, to prevail, you must convince the Court that it is more likely than not that your version of the facts is correct, what is called the weight of the evidence, not merely that there are facts in dispute.

When pro se litigants go to trial, the biggest mistake they usually make is to lack admissible evidence, treating the trial more like a summary judgment hearing where their burden of proof was much less.

On today’s show we will summarize the ten things you need to do after defeating summary judgment in order to prevail at trial, the knowledge of the research tools you need to prevail, and the obstacles that will face you, as time permits.

First, what you need to know:

1. How to research and retain trial counsel.

2. How to deal with your foreclosure Judge.

3. How to research and deal with your opposing counsel.

4. How to research your foreclosing plaintiff.

5. How to research and use your jurisdiction’s case law.

6. How to research and use your jurisdiction’s evidence rules.

7. How to research and counter opposing counsel’s witnesses.

8. How to research and counter opposing counsel’s exhibits.

9. How to research and settle your case before trial.

10. How to research and settle your case if you lose at trial.

Unfortunately the obstacles in the way of homeowners prevailing at trial are still many:

a. Unless you filed first, you will not get a jury trial.

b. Often the outcome will depend on what your trial budget is.

c. Another limiting factor is how much equity you have in your property worth saving.

d. There are few competent foreclosure defense attorneys nationwide, at best only a handful, if any, in every State.

e. There are few knowledgeable foreclosure judges nationwide, in some States none.

Nevertheless, having defeated summary judgment, if you listen to today’s show you will increase your knowledge of how you can win and win big at trial and save your home, as many others are doing, despite the otherwise formidable obstacles.

Gary Dubin

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

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Host: Gary Dubin Co-Host: John Waihee

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CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

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The Foreclosure Hour 12

 

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MERSCORP Holdings Debuts MERS eNote Solutions, Powered by eOriginal

MERSCORP Holdings Debuts MERS eNote Solutions, Powered by eOriginal

ENTER THE HACKERS!!

Them Report-

MERSCORP Holdings, Inc. and eOriginal, Inc.has launched a new solution offering that will enable originators to accelerate entry into the digital mortgage ecosystem. MERS eNote Solutions, part of the MERS eSuite, will enable the creation, execution, registration, and management of the electronic promissory note, or eNote, to mortgage originators across the industry.

“MERSCORP Holdings is proud to provide technology-based solutions that add value to our members’ bottom line,” said Brendon Weiss, MERSCORP Holdings COO. “Our members identified several gaps that need to be addressed to increase eNote adoption, and this new solution fills a significant need for originators seeking to leverage existing vendor relationships.”

[THEM  REPORT]

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STOP THE BEACH RENOURISHMENT, INC. v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ET AL | Supreme Court rejects Florida beach IDIOT owners’ claim

STOP THE BEACH RENOURISHMENT, INC. v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ET AL | Supreme Court rejects Florida beach IDIOT owners’ claim

https://en.wikipedia.org/wiki/Stop_the_Beach_Renourishment_v._Florida_Department_of_Environmental_Protection

 

STOP THE BEACH RENOURISHMENT, INC. V. FLOR-IDA DEPT. OF ENVIRONMENTAL PROTECTION

SUPREME COURT OF THE UNITED STATES

STOP THE BEACH RENOURISHMENT, INC. 

v.

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.

certiorari to the supreme court of florida

No. 08–1151.?Argued December 2, 2009—Decided June 17, 2010

Florida owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore. The mean high-water line is the ordinary boundary between private beachfront, or littoral property, and state-owned land. Littoral owners have, inter alia, rights to have access to the water, to use the water for certain purposes, to have an unobstructed view of the water, and to receive accretions and relictions (collectively, accretions) to the littoral property. An accretion occurs gradually and imperceptibly, while a sudden change is an avulsion. The littoral owner automatically takes title to dry land added to his property by accretion. With avulsion, however, the seaward boundary of littoral property remains what it was: the mean high-water line before the event. Thus, when an avulsion has added new land, the littoral owner has no right to subsequent accretions, because the property abutting the water belongs to the owner of the seabed (ordinarily the State).

      Florida’s Beach and Shore Preservation Act establishes procedures for depositing sand on eroded beaches (restoration) and maintaining the deposited sand (nourishment). When such a project is undertaken, the State entity that holds title to the seabed sets a fixed “erosion control line” to replace the fluctuating mean high-water line as the boundary between littoral and state property. Once the new line is recorded, the common law ceases to apply. Thereafter, when accretion moves the mean high-water line seaward, the littoral property remains bounded by the permanent erosion-control line.

Respondents the city of Destin and Walton County sought permits to restore 6.9 miles of beach eroded by several hurricanes, adding about 75 feet of dry sand seaward of the mean high-water line (to be denominated the erosion-control line). Petitioner, a nonprofit corporation formed by owners of beachfront property bordering the project (hereinafter Members) brought an unsuccessful administrative challenge. Respondent the Florida Department of Environmental Protection approved the permits, and this suit followed. The State Court of Appeal concluded that the Department’s order had eliminated the Members’ littoral rights (1) to receive accretions to their property and (2) to have their property’s contact with the water remain intact. Concluding that this would be an unconstitutional taking and would require an additional administrative requirement to be met, it set aside the order, remanded the proceeding, and certified to the Florida Supreme Court the question whether the Act unconstitutionally deprived the Members of littoral rights without just compensation. The State Supreme Court answered “no” and quashed the remand, concluding that the Members did not own the property supposedly taken. Petitioner sought rehearing on the ground that the Florida Supreme Court’s decision effected a taking of the Members’ littoral rights contrary to the Fifth and Fourteenth Amendments; rehearing was denied.

Held: The judgment is affirmed.

998 So. 2d 1102, affirmed.

   Justice Scalia delivered the opinion of the Court with respect to Parts I, IV, and V, concluding that the Florida Supreme Court did not take property without just compensation in violation of the Fifth and Fourteenth Amendments. Pp. 24–29.

   (a) Respondents’ arguments that petitioner does not own the property and that the case is not ripe were not raised in the briefs in opposition and thus are deemed waived. Pp. 24–25.

(b) There can be no taking unless petitioner can show that, before the Florida Supreme Court’s decision, littoral property owners had rights to future accretions and to contact with the water superior to the State’s right to fill in its submerged land. That showing cannot be made. Two core Florida property-law principles intersect here. First, the State as owner of the submerged land adjacent to littoral property has the right to fill that land, so long as it does not interfere with the rights of the public and of littoral landowners. Second, if an avulsion exposes land seaward of littoral property that had previously been submerged, that land belongs to the State even if it interrupts the littoral owner’s contact with the water. Prior Florida law suggests that there is no exception to this rule when the State causes the avulsion. Thus, Florida law as it stood before the decision below allowed the State to fill in its own seabed, and the resulting sudden exposure of previously submerged land was treated like an avulsion for ownership purposes. The right to accretions was therefore subordinate to the State’s right to fill. Pp. 25–27.

(c) The decision below is consistent with these principles. Cf. Lucas v. South Carolina Coastal Council505 U. S. 1003, 1028–1029. It did not abolish the Members’ right to future accretions, but merely held that the right was not implicated by the beach-restoration project because of the doctrine of avulsion. Relying on dicta in the Florida Supreme Court’s Sand Keydecision, petitioner contends that the State took the Members’ littoral right to have the boundary always be the mean high-water line. But petitioner’s interpretation of that dictum contradicts the clear law governing avulsion. One cannot say the Florida Supreme Court contravened established property law by rejecting it. Pp. 27–29.

Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded in Parts II and III that if a court declares that what was once an established right of private property no longer exists, it has taken that property in violation of the Takings Clause. Pp. 7–24.

(a) Though the classic taking is a transfer of property by eminent domain, the Clause applies to other state actions that achieve the same thing, including those that recharacterize as public property what was previously private property, see Webb’s Fabulous Pharmacies, Inc. v. Beckwith449 U. S. 155, 163–165. The Clause is not addressed to the action of a specific branch or branches. It is concerned simply with the act, not with the governmental actor. This Court’s precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the contrary. See PruneYard Shopping Center v. Robins, 447 U. S. 74Webb’s Fabulous Pharmaciessupra. Pp. 7–20.

(b) For a judicial taking, respondents would add to the normal takings inquiry the requirement that the court’s decision have no “fair and substantial basis.” This test is not obviously appropriate, but it is no different in this context from the requirement that the property owner prove an established property right. Respondents’ additional arguments—that federal courts lack the knowledge of state law required to decide whether a state judicial decision purporting to clarify property rights has instead taken them; that common-law judging should not be deprived of needed flexibility; and that applying the Takings Clause to judicial decisions would force lower federal courts to review final state-court judgments, in violation of the RookerFeldman doctrine, see Rooker v. Fidelity Trust Co.263 U. S. 413, 415–416, District of Columbia Court of Appeals v. Feldman460 U. S. 462, 476—are unpersuasive. And petitioner’s proposed “unpredictability test”—that a judicial taking consists of a decision that “constitutes a sudden change in state law, unpredictable in terms of relevant precedents,” Hughes v. Washington389 U. S. 290, 296 (Stewart, J., concurring)—is misdirected. What counts is not whether there is precedent for the allegedly confiscatory decision, but whether the property right allegedly taken was well established. Pp. 20–24.

Justice Kennedy, joined by Justice Sotomayor, agreed that the Florida Supreme Court did not take property without just compensation, but concluded that this case does not require the Court to determine whether, or when, a judicial decision determining property owners’ rights can violate the Takings Clause. If and when future cases show that the usual principles, including constitutional ones that constrain the judiciary like due process, are inadequate to protect property owners, then the question whether a judicial decision can effect a taking would be properly presented. Pp. 1–10.

Justice Breyer, joined by Justice Ginsburg, agreed that no unconstitutional taking occurred here, but concluded that it is unnecessary to decide more than that to resolve this case. Difficult questions of constitutional law—e.g., whether federal courts may review a state court’s decision to determine if it unconstitutionally takes private property without compensation, and what the proper test is for evaluating whether a state-court property decision enacts an unconstitutional taking—need not be addressed in order to dispose “of the immediate case.” Whitehouse v. Illinois Central R. Co.349 U. S. 366, 373. Such questions are better left for another day. Pp. 1–3.

   Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined, and an opinion with respect to Parts II and III, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Sotomayor, J., joined. Breyer, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, J., joined. Stevens, J., took no part in the decision of the case.

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CONFLICT!! | Beach Front Owner Rick Scott Just Signed a Bill That Could Make Many of Florida’s Beaches Private

CONFLICT!! | Beach Front Owner Rick Scott Just Signed a Bill That Could Make Many of Florida’s Beaches Private

Miami New Times-

The beach is one of the defining facets of Miami that make this city magic. The white sands are Florida’s identity — an oasis that beckons everyone and belongs to no one, not the billionaires in beach chairs or the kids skipping class and sitting on their backpacks in the sand.

But that might change in some places around the Sunshine State. Gov. Rick Scott last month signed HB 631, the Possession of Real Property Bill, which on July 1 will give hotels, condos, and private residences more control over the beachfront they own, all the way to the high-tide line. Critics say the bill will ultimately give private owners more power to kick the public off their piece of paradise.

“I think this bill is ridiculous,” says Philip Levine, the former Miami Beach mayor now running for the Democratic bid for governor. “Why would we want to take away one of the most basic rights of our residents and do something that could hurt our tourism economy? People visit Florida to be able to walk the beach freely and without being accosted whether they are on dry sand or wet sand.”

[MIAMI NEW TIMES]

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Dysart v. TRUSTMARK NATIONAL BANK, Court of Appeals, 11th Circuit | Trustmark breached the terms of the mortgage by failing to give Dysart proper notice before accelerating the loan

Dysart v. TRUSTMARK NATIONAL BANK, Court of Appeals, 11th Circuit | Trustmark breached the terms of the mortgage by failing to give Dysart proper notice before accelerating the loan

 

NELL C. DYSART, Plaintiff-Appellant,
v.
TRUSTMARK NATIONAL BANK, a corporation, Defendant-Appellee.

No. 15-14690.
United States Court of Appeals, Eleventh Circuit.
March 30, 2018.
Henry T. Morrissette, for Defendant-Appellee.

Andrew J. Sinor, Jr., for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama, D.C. Docket No. 2:13-cv-02092-KOB.

Before WILLIAM PRYOR, JILL PRYOR and CLEVENGER[*], Circuit Judges.

DO NOT PUBLISH

PER CURIAM.

Plaintiff Nell Dysart, proceeding pro se, brought a state law breach of contract claim against Trustmark National Bank, alleging that it breached the terms of her mortgage when it accelerated her loan without providing her with the notice the mortgage required. The district court granted summary judgment to Trustmark. The court determined that Trustmark fulfilled its notice obligations under the mortgage as a matter of law, even though it failed to disclose some of the information required by the mortgage, because Dysart had actual knowledge of the omitted information.

This appeal requires us to consider whether, under Alabama law, a bank breaches the terms of a mortgage when it accelerates the loan—without disclosing to the borrower all the information that the mortgage requires the bank to disclose before acceleration—if the bank can show that the borrower was otherwise aware of the omitted information. We conclude that under these circumstances the bank has breached the terms of the mortgage agreement. Accordingly, we reverse the district court’s grant of summary judgment to Trustmark on Dysart’s breach of contract claim.

I. BACKGROUND

Dysart borrowed money from Trustmark secured by a mortgage on her home. The mortgage, which was based on a form agreement, obligated Dysart to make monthly payments to Trustmark, pay taxes attributable to the property, and keep the property insured, among other things. If Dysart defaulted on any of these obligations, the mortgage permitted Trustmark to accelerate the loan, foreclose on the property, and sell it in a foreclosure sale.

The mortgage dictated the notice that Trustmark had to provide to Dysart before it could accelerate the loan.[1] The notice had to identify:

(a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the [loan]. . . .

Mortgage at ¶ 22 (Doc. 1-1).[2] The mortgage also required Trustmark to “inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.” Id.

The mortgage provided that if Trustmark accelerated the loan, Dysart could cure the default and return to the original terms of the mortgage. The original terms would be reinstated if Dysart paid all sums that were currently due under the mortgage, cured any default of other covenants or agreements, paid Trustmark’s expenses in enforcing the mortgage including its reasonable attorney’s fees, and took any other action that Trustmark reasonably required.

The parties’ dispute arose after Dysart defaulted on the mortgage by failing to maintain property insurance and pay the property taxes. In a series of several communications, Trustmark notified Dysart of the default, identified the actions that Dysart needed to take to cure the default,[3] and directed that the loan would be accelerated if Dysart failed to cure the default. But there is no evidence that Trustmark communicated to Dysart that she had a right to reinstatement after the loan was accelerated or to bring an action to assert the non-existence of a default or any other borrower’s defense to acceleration and sale. When Dysart failed to cure the default, Trustmark accelerated the loan, foreclosed on the property, and sold it to a third party.

After the home was sold, Dysart, proceeding pro se, brought this lawsuit in state court, suing Trustmark for breach of contract.[4] Dysart alleged that the bank breached the terms of the mortgage by failing to give the required notice before accelerating the loan. Trustmark removed the lawsuit to federal district court on the basis of diversity jurisdiction. Trustmark then moved for summary judgment, arguing that it had not breached the contract because it had satisfied its disclosure obligations before accelerating the loan (1) by substantially complying with those obligations or (2) because Dysart was actually aware of the non-disclosed rights from prior dealings between the parties. The district court granted Trustmark’s summary judgment motion. Although there was no evidence that Trustmark had informed Dysart of her rights to reinstatement or to bring a separate action to assert the non-existence of a default, the court found that Trustmark had fulfilled its obligations because Dysart had actual knowledge of these rights. This is Dysart’s appeal.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Likes v. DHL Express (USA), Inc., 787 F.3d 1096, 1098 (11th Cir. 2015) (internal quotation marks omitted).

III. LEGAL ANALYSIS

Dysart asserts that Trustmark breached the terms of the mortgage by failing to give proper notice before accelerating her loan. She argues that before Trustmark accelerated the loan, it failed to notify her of the right to reinstatement or to bring a court action asserting the non-existence of a default; therefore, it breached the mortgage. Trustmark admits that it failed to notify Dysart of these particular rights, but it contends that there was no breach because Trustmark substantially complied with the notice requirements and because Dysart was aware of the non-disclosed rights from the parties’ prior dealings, when Dysart was in default previously. We agree with Dysart that Trustmark breached the mortgage by failing to provide the requisite notice before accelerating the loan because Alabama law is clear that a bank must strictly comply with a mortgage’s notice and disclosure requirements.[5]

The Alabama Supreme Court has recognized that if a lender fails to give notice that strictly complies with the requirements of the mortgage before accelerating the loan, the borrower has a breach of contract claim against the lender. Jackson v. Wells Fargo Bank, N.A., 90 So.3d 168 (Ala. 2012). In Jackson, after borrowers fell behind on their mortgage payments, they received a notice from their loan servicer informing them that their loan had been accelerated and a foreclosure sale was imminent. Id. at 170. After the foreclosure sale, the homeowners brought a breach of contract claim against the owner and servicer of the loan, seeking damages because the owner and servicer failed to give notice before accelerating the loan. Id. at 171. After the trial court granted summary judgment to the owner and servicer, the Alabama Supreme Court reversed, holding that the defendants breached the mortgage by failing to give the borrowers proper notice of their intent to accelerate the debt, as required under the terms of the mortgage. Id. at 173. The Court, quoting from earlier cases, explained that “strict compliance” with the mortgage’s notice provisions was required. Id. at 173 (quoting Dewberry v. Bank of Standing Rock, 150 So. 463, 469 (Ala. 1933)).

In a recent decision, the Alabama Supreme Court, relying on Jackson, reiterated that a lender must strictly comply with a mortgage’s notice provision before accelerating the loan. See Turner, 2017 WL 3821270. In Turner, after homeowners defaulted on their mortgage, their bank notified them that they were in default, that they had 30 days to cure the default before the bank accelerated the loan, and that they had the rights to reinstate the loan after acceleration and to assert in the foreclosure proceeding the non-existence of the default as a defense to the acceleration and foreclosure. Id. at *2. The bank then accelerated the loan, sold the property at a foreclosure sale, and filed an action to eject the homeowners from the property. Id. In the ejectment action, the homeowners asserted that the bank had failed to give proper notice before acceleration by failing to disclose that the homeowners could bring a separate action to assert the non-existence of the default and that this failure to give notice rendered the foreclosure sale a nullity. Id.at *3. The Alabama Supreme Court agreed, relying on Jackson and holding that substantial compliance was insufficient to satisfy the bank’s notice obligation because Alabama law “requires strict compliance” before a bank may accelerate a loan. Id. Because the bank had not strictly complied with all of the mortgage’s notice requirements, the Court concluded that the mortgage sale was void and the homeowners could not be ejected. Id. at *6.

Jackson and Turner dictate that Trustmark was required to comply strictly with the mortgage’s notice requirements, meaning it had to disclose to Dysart, among other things, that she had a right to reinstatement and to bring a court action asserting the non-existence of a default. Because Trustmark failed to do so, it breached the terms of the mortgage.

Trustmark argues that it was excused from strict compliance with the mortgage’s notice requirement because Dysart had actual knowledge of the information that Trustmark failed to disclose. We acknowledge that neither Jackson nor Turnerdirectly addressed whether proof that a borrower actually knew about her rights excuses a lender from fulfilling its notice obligations under a mortgage because this issue was not raised in either case. But it would be inconsistent with the strict compliance requirement set forth in Turner and Jackson to conclude that because the borrower learned the information in some other way that the lender is relieved from its disclosure obligations such that it did not breach the agreement. We are concerned that permitting a lender to prove that it did not breach the mortgage by relying on proof that the borrower was actually aware of the information that the lender failed to disclose would run counter to a mortgage’s requirement that the lender give specific notice after a default occurs before accelerating the loan. Allowing substitute proof of actual knowledge could, as a practical matter, eliminate a lender’s responsibility to inform the borrower of her rights upon default because the mortgage itself notifies the borrower of these rights.

We also acknowledge Alabama case law holding that if a lender provides proof that it sent proper notice but the borrower denies ever receiving the notice, the court may consider whether the borrower had actual knowledge of the information that the lender was required to disclose. See Redman v. Fed. Home Mtg. Corp.,765 So.2d 630 (Ala. 1999). In Redman, before accelerating the loan on a divorced couple’s home, the lender fulfilled its disclosure obligations by sending, through certified mail, a notice of default to the home’s address. Id. at 634. In an ejectment and wrongful foreclosure action, the ex-wife claimed that the bank failed to provide proper notice of the default because although she lived at the home she never received the notice. Id. The Alabama Supreme Court, after finding that the bank had fulfilled its disclosure obligations, rejected the ex-wife’s argument. Instead, the Court relied on the fact that the ex-wife had actual knowledge of the information that the bank was required to disclose, explaining that she could not “close[] [her] eyes to avoid `discovery’ of the truth that was reasonably apparent.” Id. at 635.

The district court in this case treated Redman as permitting Trustmark to rely on evidence that Dysart received constructive notice in lieu of proving that it had strictly complied with the mortgage’s notice requirements. But nothing in Redmandirectly addressed the question before us in this case—whether a lender breaches a mortgage when it fails to comply with a mortgage’s pre-acceleration disclosure requirements if it can show that the borrower already knew the information that the lender was required to disclose. This issue necessarily was not decided in Redman because it was undisputed that the lender had sent proper notice before accelerating the loan.

We recognize that in a different context the Alabama Supreme Court has adopted a harmless error standard, holding that when a lender fails to provide the public with notice required under an Alabama statute before conducting a foreclosure sale, the borrower may rely on this error to invalidate the foreclosure sale only if the error prejudiced the borrower. See Perry v. Fed. Nat’l Mortg. Assoc., 100 So. 3d 1090 (Ala. Civ. App. 2012). In Perry, after a homeowner defaulted on his mortgage, EverHome Mortgage Company published a notice in a local newspaper that it was the assignee of the mortgage and would be selling the property in a foreclosure sale. Id. at 1092. Alabama law requires that before conducting a foreclosure sale, a lender must give the public notice of the “time, place, and terms” of the sale through a notice published in a local newspaper. Ala. Code § 35-10-13. EverHome failed to comply with the statute’s notice requirement because its description of the terms of the sale was inaccurate: it was not the assignee of the mortgage at the time the notice was published. Instead, EverHome was assigned the mortgage one week later. Id. at 1098. When the purchaser at the foreclosure sale brought an action to eject the homeowner, the homeowner argued that the foreclosure sale was null and void because EverHome’s notice inaccurately identified EverHome as the assignee of the mortgage. See Ala. Code § 35-10-13. The Alabama Court of Civil Appeals rejected the homeowner’s argument, holding that only errors in a required notice that prejudice the borrower will invalidate an otherwise valid foreclosure sale. Perry, 100 So. 3d at 1099.

Although Perry did not require the lender to strictly comply with the statutory requirements governing notice to the public before a foreclosure sale, nothing in the opinion addressed whether this harmless error standard also applies when a lender fails to comply with a mortgage’s notice requirements before accelerating a loan. We conclude that it would be inappropriate to extend the reasoning in Perryfrom the context of a lender failing to comply with statutory public disclosure requirements to that of a lender failing to comply with a mortgage’s disclosure requirements because to do so would be inconsistent with the Alabama Supreme Court’s Turner and Jackson decisions requiring strict compliance with mortgage disclosure obligations. See Turner, 2017 WL 3821270, at *6; Jackson, 90 So.3d at 173.

Finally, we note that although Trustmark breached the terms of the mortgage by failing to give Dysart proper notice before accelerating the loan, if Dysart had independent knowledge of the information that Trustmark was required to disclose, she may have suffered no actual damages. But this would not defeat Dysart’s claim because even without actual damages Alabama law permits the recovery of nominal damages in breach of contract actions. See Knox Kershaw, Inc. v. Kershaw, 552 So. 2d 126, 128 (Ala. 1989) (“It is well settled, however, that once a breach of contract has been established, as it was in this case, the nonbreaching party is entitled to nominal damages even if there was a failure of proof regarding actual damages.”).

IV. CONCLUSION

For the reasons set forth above, we reverse the district court’s grant of summary judgment to Trustmark. We remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

[*] Honorable Raymond C. Clevenger III, United States Circuit Judge for the Federal Circuit, sitting by designation.

[1] The mortgage established different notice requirements if Dysart was in default because she sold an interest or transferred her interest in the property without first obtaining Trustmark’s consent. Because Trustmark does not contend that it accelerated the loan on this basis, these requirements are not at issue.

[2] Citations to “Doc. #” refer to numbered docket entries in the district court record in this case.

[3] In the letter identifying the actions Dysart needed to take to cure the default regarding the property taxes, Trustmark gave Dysart seven days to say whether she would cure the default, but it never set a deadline for Dysart to cure the default before it accelerated the loan.

[4] Dysart previously sued Trustmark and others in three separate lawsuits alleging claims arising out of the foreclosure. Additionally, in this lawsuit Dysart originally brought other claims against the bank and its attorneys. The issues before us in this appeal are limited to her breach of contract claim; they do not implicate Dysart’s earlier lawsuits or her other claims in this action.

[5] The parties agree that in this diversity action Alabama law governs the breach of contract claim.

 

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Judge narrows Cook County’s lawsuit against Bank of America

Judge narrows Cook County’s lawsuit against Bank of America

Reuters-

Cook County, Illinois can proceed with a lawsuit accusing Bank of America of targeting minorities for predatory, high-interest mortgages that allegedly led to thousands of foreclosures, a federal judge in Chicago has ruled.

But U.S. District Judge Elaine Bucklo said in her decision on Friday, that several harms Cook County asserted, such as lost revenue and increased policing costs in blighted neighborhoods, “do not flow directly” from the discrimination the county alleges, and she limited the damages it can recover.

[REUTERS]

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Court throws out Iraq vet’s foreclosure after bank missed deadline

Court throws out Iraq vet’s foreclosure after bank missed deadline

News Day-

A Central Islip military veteran and his wife won their 12-year battle to save their home when the appellate division of the state Supreme Court threw out the foreclosure case against them.

Christopher and Barbara Joseph can keep their home “free and clear” of its mortgage now that a four-judge appellate panel ruled in their favor, said Ivan Young, the Josephs’ attorney. The judges unanimously overturned a lower court’s decision on Thursday, finding that their lender, U.S. Bank National Association, missed the state’s six-year deadline to file its second foreclosure lawsuit, court papers show.

“It’s a big weight off my shoulders, a big relief,” Christopher, 55, said in a telephone interview from his home. “It’s taken a lot of stress and pressure off us.”

[NEWS DAY]

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US Bank v Bernice 380 Corp.–Young Law Group Wins ANOTHER Statute of Limitations Dismissal!

US Bank v Bernice 380 Corp.–Young Law Group Wins ANOTHER Statute of Limitations Dismissal!

US Bank v 380 Bernice Corp- Nassau Sup Ct_SOL Dismissal_declaring 2d Dept Case Law Flatly Rejects Rejects M… by DinSFLA on Scribd

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