Reano v. US Bank, Nat'l Ass'n, s. 4D14–886

• Decision Date: 11 May 2016
• Docket Number: Nos. 4D14–886,4D15–0212.,s. 4D14–886
• Citation: 191 So.3d 959
• Parties: Carmen E. REANO and Santiago Reano, Appellants, v. US BANK, NATIONAL ASSOCIATION, as Trustee for Credit Suisse First Boston CSFB 2005–3, French Villas Condominium Association, Inc., Appellees.
• Court: Florida District Court of Appeals

191 So.3d 959

Carmen E. REANO and Santiago Reano, Appellants,

v.US BANK, NATIONAL ASSOCIATION, as Trustee for Credit Suisse First Boston CSFB 2005–3, French Villas Condominium Association, Inc., Appellees.

Nos. 4D14–886

4D15–0212.

District Court of Appeal of Florida, Fourth District.

May 11, 2016.

Jeffrey Golant of The Law Offices of Jeffrey N. Golant, P.A., Coral Springs, and Jennifer T. Harley of Legal Aid Service of Broward County, Inc., Plantation, for appellants.

Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee U.S. Bank, National Association, as Trustee for Credit Suisse First Boston CSFB 2005–3.

DAMOORGIAN

, J.

Carmen and Santiago Reano appeal a final judgment of mortgage foreclosure entered in favor of U.S. Bank, N.A. as Trustee for Credit Suisse First Boston CSFB 2005–3 (the “Bank”). Appellants challenge the sufficiency of the evidence establishing that they were in default at the time the Bank filed its complaint as well as the denial of their motion for relief from judgment based on the presiding judge's alleged conflict of interest. After a careful review of the record, we agree that the Bank did not present competent, substantial evidence establishing that Appellants were in default and, therefore, reverse.

The Bank filed a mortgage foreclosure complaint against Appellants on March 16, 2010. In its complaint, the Bank alleged that “there has been a default under the note and mortgage held by [Appellants] in that the payment due November 1, 2009 and all subsequent payments have not been made.” As an affirmative defense, Appellants asserted that they had “tendered all payments as required” but the Bank “has breached the agreement by refusing to accept same.”

At the bench trial, a loan verification analyst for the loan's servicer testified as the Bank's only witness. Through the analyst, the Bank introduced Appellants' payment history, the servicer's breach letter, and the servicer's collection log into evidence. The analyst testified that the breach letter informed Appellants they were delinquent on their mortgage in the amount of $1,309.92 as of December 20, 2009 and had until January 19, 2010 to pay. Appellants remitted payment in the amount of $3,297.14 on March 8, 2010. Rather than apply Appellants' payment to their account, the servicer placed the funds in suspense because, according to the analyst, the remitted payment came “too late.” Eight days later, the Bank filed its lawsuit. On cross-examination, the analyst admitted that Appellants' March 8, 2010 payment, if applied, would have brought their “account current all the way to April of 2010.” Considering the aforementioned evidence, the court entered judgment in favor of the Bank.

On appeal, Appellants maintain that their March 8, 2010 payment brought their account current to April of 2010 and, thus, they were not in default when the Bank filed its lawsuit. The Bank argues that although Appellants' March 8, 2010 payment was sufficient to cover past due principal, interest, and late fees, it was insufficient to cure their default as it did not cover two fifteen dollar inspection fees and a ninety-five dollar “Broker BPO” fee. An appellate court reviews the trial court's findings in a foreclosure action concerning the amounts paid and owed under a note “for competent, substantial evidence supporting the verdict.” Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280, 283 (Fla. 2d DCA 2...