Grudem v. Fed. Nat'l Mortg. Ass'n

• Citation: 189 So.3d 914
• Decision Date: 18 March 2016
• Docket Number: No. 5D14–4652.,5D14–4652.
• Parties: Charles M. GRUDEM and Dianne K. Grudem, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, etc., et al., Appellees.
• Court: Court of Appeal of Florida (US)

189 So.3d 914

Charles M. GRUDEM and Dianne K. Grudem, Appellants,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, etc., et al., Appellees.

No. 5D14–4652.

District Court of Appeal of Florida, Fifth District.

March 18, 2016.
Rehearing Denied April 26, 2016.

Ryan N. Ghantous, of Ghantous & Branch, PLLC, Orlando, for Appellants.

H. Michael Muniz, of Kahane & Associates, P.A., Plantation, for Appellees.

WALLIS, J.

Dr. Charles M. and Mrs. Dianne K. Grudem ("Appellants") appeal the trial court's foreclosure judgment in favor of Federal National Mortgage Association ("FNMA"). Because FNMA failed to meet its burden to prove foreclosure, we reverse and remand for a new trial.

FACTS

In January 2010, SunTrust Mortgage, Inc. ("SunTrust"), as loan servicer, filed a foreclosure complaint against Appellants, alleging that FNMA, owner of the note, authorized it to bring the action. In February 2012, Appellants' counsel withdrew and, in its motion, erroneously listed Appellants' last known city of residence as "Orlando" instead of "Ocala." In April 2013, the trial court sent a case management order to the Orlando address, which was returned to sender. The case management hearing went forward without Appellants, and the trial court set the case for non-jury trial on June 18, 2013, again sending the order to the Orlando address. Appellants failed to appear, and the trial

189 So.3d 915

court entered a foreclosure judgment for SunTrust.

In July 2013, Appellants filed a notice of their updated mailing address and an accompanying motion requesting corrective actions, explaining counsel's previous filing of an incorrect address. Appellants then filed a request for expedited or emergent adjudication, seeking to stop the foreclosure sale and an order setting aside the foreclosure judgment. On August 19, 2013, the trial court granted the request and motion, cancelling the foreclosure sale and setting aside the judgment of foreclosure. SunTrust did not challenge or appeal this order.

FNMA later replaced SunTrust as plaintiff, and the trial court set the case for a new non-jury trial before a different judge on November 25, 2014. When Dr. Grudem, appearing pro se on Appellants' behalf, failed to arrive on time, the trial court ruled in FNMA's favor. FNMA represented to the trial court that it did not know why the trial court vacated SunTrust's prior judgment of foreclosure. After the trial court requested an order from FNMA, FNMA's counsel responded as follows:

[FNMA]: You don't want to sign the first judgment? I guess it would be—

THE COURT: You've already got an order?

[FNMA]: Well, I mean, technically, that judgment was vacated, so there is a new judgment.

THE COURT: We have already had one trial before?

[FNMA]: Yes, Your Honor.

THE COURT: All right. I don't know why it was set aside, but all right.

After Dr. Grudem arrived and explained his tardiness, the trial court recalled the case. FNMA established its sole witness's familiarity with the relevant records and questioned the...