Bank of N.Y. Mellon v. Bloedel, Case No. 2D17–1740

CourtFlorida District Court of Appeals
Writing for the CourtLUCAS, Judge.
Citation236 So.3d 1164
Parties The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee FOR the CERTIFICATEHOLDERS OF CWABS, INC., ASSET–BACKED CERTIFICATES, SERIES 2005–BC5, Appellant. v. Theodore E. BLOEDEL, Jr., and Sue A. Bloedel, Appellees.
Decision Date31 January 2018
Docket NumberCase No. 2D17–1740

236 So.3d 1164

The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee FOR the CERTIFICATEHOLDERS OF CWABS, INC., ASSET–BACKED CERTIFICATES, SERIES 2005–BC5, Appellant.
v.
Theodore E. BLOEDEL, Jr., and Sue A. Bloedel, Appellees.

Case No. 2D17–1740

District Court of Appeal of Florida, Second District.

Opinion filed January 31, 2018


Jacqueline Costoya, of Kelley Kronenberg, Fort Lauderdale, for Appellant.

Leslie M. Conklin, Clearwater, for Appellee.

LUCAS, Judge.

Following the issuance of this court's opinion and mandate in Bank of New York Mellon v. Bloedel, 197 So.3d 147 (Fla. 2d DCA 2016), reversing a final judgment denying foreclosure, the circuit court convened a hearing to address an argument that was raised, but never pleaded or tried by consent, at the prior bench trial on The Bank of New York Mellon's (Bank of New York) complaint to foreclose a mortgage over Theodore E. Bloedel, Jr.'s home.1 The court then granted Mr. Bloedel's motion for involuntary dismissal and entered a second final judgment denying foreclosure, which Bank of New York now appeals. For the reasons we explain below, we must again reverse the circuit court's judgment.

I.

The March 2015 trial in this case was succinct. Bank of New York presented the only witness, Dianne Chalmers, who worked for Bank of New York's servicer.2 Through Ms. Chalmers, Bank of New York introduced evidence of a power of attorney, a certified copy of a pooling and servicing agreement, a mortgage loan schedule, copies of Mr. Bloedel's promissory note and mortgage, servicing records and payment history, and a notice of intent to accelerate along with a copy of a certified

236 So.3d 1166

mailing receipt. Concerning the payment history of Mr. Bloedel's loan, Ms. Chalmers discussed how the computation of Mr. Bloedel's default was determined. Of note for purposes of this appeal, Ms. Chalmers mentioned that the servicer received five payments that appeared to reflect reduced payments from Mr. Bloedel as part of what was, apparently, a three-month "trial" modification agreement concerning Mr. Bloedel's loan.

As it happened, this was the first time any reference to a trial modification agreement had surfaced in the course of this litigation. Mr. Bloedel had never raised the issue of modification in his answer or affirmative defenses. Nevertheless, seizing on the discovery, Mr. Bloedel's counsel argued to the circuit court that Bank of New York's complaint should be involuntarily dismissed. Pertinent here, Mr. Bloedel posited that dismissal was warranted because of the failure of the bank to offer the written modification agreement into evidence, its failure to plead and prove the existence of a valid loan modification agreement, and its failure to attach the written loan modification agreement to its complaint under Florida Rule of Civil Procedure 1.130(a).

Originally, the circuit court expressed concern about, but did not rule upon, any of these arguments, a point we noted in our earlier Bloedel opinion. See 197 So.3d at 147 n.2. Rather, the circuit court's first judgment denying foreclosure centered on Mr. Bloedel's challenge to the sufficiency of Bank of New York's default notice to Mr. Bloedel. That ruling, we held, was erroneous because the court did not have the benefit of our opinion in Green Tree Servicing, LLC v. Milam, 177 So.3d 7 (Fla. 2d DCA 2017), at the time it issued its judgment. Bloedel, 197 So.3d at 147–48.

On remand, the matter of the trial modification agreement came back before the circuit court on Bank of New York's Motion for New Trial Pursuant to Appellate Mandate and Mr. Bloedel's request for the court to rule upon his previously asserted alternative grounds for involuntary dismissal. A hearing was convened on March 2, 2017, during which the parties presented argument but no further evidence, relying instead on their recollections of what transpired at the March 2015 trial. On April 3, 2017, the circuit court granted Mr. Bloedel's motion for involuntary dismissal and rendered its second final judgment denying foreclosure, the judgment that is the subject of the present appeal.

In this second judgment, the circuit court concluded that rule 1.130(a)"required that a copy of the loan modification agreement be attached to the complaint." Furthermore, citing Kuehlman v. Bank of America, N.A., 177 So.3d 1282 (Fla. 5th DCA 2015), and Nowlin v. Nationstar Mortgage, LLC, 193 So.3d 1043 (Fla. 2d DCA 2016), the court determined that Bank of New York "could only foreclose by alleging and proving a breach of the modification agreement, which was not done here." Finally, the court found that without the trial loan modification agreement in evidence, Bank of New York's testimony and documents concerning the amounts Mr. Bloedel owed under the promissory note had insufficient foundation and evidentiary support.

In short, the circuit court perceived Bank of New York's failure to allege, proffer, and account for the issue of a trial modification agreement, an issue that first arose during a witness' cross-examination at trial, to be fatal to its right to foreclose on its mortgage. Under these facts, we must disagree.

II.

We begin with the oft-repeated observation that issues not raised within the pleadings of a civil controversy are ordinarily deemed waived. See

236 So.3d 1167

Fla. R. Civ. P. 1.140(h)(1) ("A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2)."); Gordon v. Gordon, 543 So.2d 428, 429 (Fla. 2d DCA 1989) ("An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court's determination."); Heartwood 2, LLC v. Dori, 208 So.3d 817, 821 (Fla. 3d DCA 2017) ("It is well-settled law in Florida that affirmative defenses not raised are waived."); Airport Plaza Ltd. v. United Nat'l Bank of Miami, 611 So.2d 1256, 1257 (Fla. 3d DCA 1992) ("It was improper to introduce at trial issues not previously raised in the pleadings."); cf. Bank of Am., Nat'l Ass'n v. Asbury, 165 So.3d 808, 809 (Fla. 2d DCA 2015) ("Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are."). Indeed, we have held "[a] trial court lacks jurisdiction to enter any judgment on an issue not raised by the pleadings." Paulk v. Paulk, 25 So.3d 672, 674 (Fla. 2d DCA 2010) (quoting Newberry v. Newberry, 831 So.2d 749, 751 (Fla. 5th DCA 2002) ).3

Mr. Bloedel does not appear to dispute any of these tenets. To some degree he embraces them, as he argues that it was Bank of New York, not he, which fell short of the pertinent pleading requirements. But in our opinion, Mr. Bloedel misapprehends the nature of the issue (such as it was) of the temporary loan modification agreement in this litigation. In fact, he has the matter entirely turned around.

The effect of a modification to a legal agreement, to the extent it would constitute an avoidance of all or part of a defendant's liability under the agreement, is an affirmative defense that must be pled and proven by the defendant. See Fla. R. Civ. P. 1.110(d) ("[A] party...

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10 practice notes
  • Nembhard v. Universal Prop. & Cas. Ins. Co., 3D20-1383
    • United States
    • Court of Appeal of Florida (US)
    • August 18, 2021
    ...for the first time in a motion for summary judgment rather than in a responsive pleading, relying on Bank of NY. Mellon v. Bloedel, 236 So.3d 1164, 1166-1167 (Fla. 2d DCA2018), among others, which holds that issues not raised within the pleadings of a civil controversy are ordinarily deemed......
  • Nembhard v. Universal Prop. & Cas. Ins. Co., 3D20-1383
    • United States
    • Court of Appeal of Florida (US)
    • August 18, 2021
    ...for the first time in a motion for summary judgment rather than in a responsive pleading, relying on Bank of N.Y. Mellon v. Bloedel, 236 So. 3d 1164, 1166-1167 (Fla. 2d DCA 2018), among others, which holds that issues not raised within the pleadings of a civil controversy are ordinarily dee......
  • Phelps v. State, Case No. 2D17–594
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 2018
    ...violates rule 3.830 and reversal is required. See Rhoads, 817 So.2d at 1092 ; T.J.L., 139 So.3d at 506 ; Searcy, 971 So.2d at 1014 ; 236 So.3d 1164 Garrett, 876 So.2d at 25 ; Martin, 711 So.2d at 1175. Here, the trial court violated rule 3.830 by failing to give Phelps the opportunity to sh......
  • MTGLQ Inv'rs, LP v. Leones, No. 4D19-3872
    • United States
    • Court of Appeal of Florida (US)
    • April 7, 2021
    ...liability under the agreement, is an affirmative defense that must be pled and proven by the defendant." Bank of N.Y. Mellon v. Bloedel, 236 So. 3d 1164, 1167 (Fla. 2d DCA 2018) (citing Fla. R. Civ. P. 1.110(d)).Page 5 We agree with the Bank that in this case, the loan modification was an a......
  • Request a trial to view additional results
10 cases
  • Nembhard v. Universal Prop. & Cas. Ins. Co., 3D20-1383
    • United States
    • Court of Appeal of Florida (US)
    • August 18, 2021
    ...for the first time in a motion for summary judgment rather than in a responsive pleading, relying on Bank of NY. Mellon v. Bloedel, 236 So.3d 1164, 1166-1167 (Fla. 2d DCA2018), among others, which holds that issues not raised within the pleadings of a civil controversy are ordinarily deemed......
  • Nembhard v. Universal Prop. & Cas. Ins. Co., 3D20-1383
    • United States
    • Court of Appeal of Florida (US)
    • August 18, 2021
    ...for the first time in a motion for summary judgment rather than in a responsive pleading, relying on Bank of N.Y. Mellon v. Bloedel, 236 So. 3d 1164, 1166-1167 (Fla. 2d DCA 2018), among others, which holds that issues not raised within the pleadings of a civil controversy are ordinarily dee......
  • Phelps v. State, Case No. 2D17–594
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 2018
    ...violates rule 3.830 and reversal is required. See Rhoads, 817 So.2d at 1092 ; T.J.L., 139 So.3d at 506 ; Searcy, 971 So.2d at 1014 ; 236 So.3d 1164 Garrett, 876 So.2d at 25 ; Martin, 711 So.2d at 1175. Here, the trial court violated rule 3.830 by failing to give Phelps the opportunity to sh......
  • MTGLQ Inv'rs, LP v. Leones, No. 4D19-3872
    • United States
    • Court of Appeal of Florida (US)
    • April 7, 2021
    ...liability under the agreement, is an affirmative defense that must be pled and proven by the defendant." Bank of N.Y. Mellon v. Bloedel, 236 So. 3d 1164, 1167 (Fla. 2d DCA 2018) (citing Fla. R. Civ. P. 1.110(d)).Page 5 We agree with the Bank that in this case, the loan modification was an a......
  • Request a trial to view additional results

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