Wells Fargo Bank, Nat'l Ass'n v. Sawh

• Decision Date: 01 June 2016
• Docket Number: No. 3D14–2707.,No. 3D14–2782 ,3D14–2782
• Citation: 194 So.3d 475
• Parties: WELLS FARGO BANK, NATIONAL Association, as Trustee for Structured Asset Mortgage Investments II Inc., Bear Stearns Mortgage Funding Trust 2006–AR3, Mortgage Pass Through Certificates, Series 2006–AR3, Appellant, v. Sally N. SAWH, et al., Appellees.
• Court: Florida District Court of Appeals

194 So.3d 475

WELLS FARGO BANK, NATIONAL Association, as Trustee for Structured Asset Mortgage Investments II Inc., Bear Stearns Mortgage Funding Trust 2006–AR3, Mortgage Pass Through Certificates, Series 2006–AR3, Appellant,

v.Sally N. SAWH, et al., Appellees.

No. 3D14–2782

No. 3D14–2707.

District Court of Appeal of Florida, Third District.

June 1, 2016.

Kula & Associates, Elliot B. Kula, W. Aaron Daniel and William D. Mueller, for appellant.

Roniel Rodriguez, IV, for appellee, Credo LLC.

Before WELLS, LAGOA and SCALES, JJ.

WELLS

, Judge.

Wells Fargo Bank, National Association, appeals from a final order dismissing this mortgage foreclosure action following entry of a redemption order, claiming that because the redemption order improperly liquidated unliquidated amounts due, it is entitled to relief as a matter of law.¹ Because we agree with Wells Fargo that the amount due to redeem the mortgage at issue was unliquidated and required evidentiary support, we reverse the final order of dismissal, vacate the redemption order, and remand for an evidentiary hearing to determine the amount that must be paid to redeem this mortgage.

This action commenced in October 2013, when Wells Fargo filed suit to foreclose a mortgage securing an adjustable rate note executed by Sally N. Sawh. Along with a number of lienholders, Credo, LLC was named as a party and joined as “the current owner[ ] of the property which is the subject of the Mortgage.” The verified complaint alleged that principal in the amount of $3,331,190.81 was due, as well as additional amounts not specified in the complaint for interest, taxes, insurance, escrow advances, the cost of inspections and property preservation, and the expenses, including attorneys' fees incurred in pursuing the instant action:

10. There is now due and owing the principal sum of $3,331,190.81, together with all sums that may be due for interest, taxes, insurance, escrow advances and/or fees for inspections, property preservations or other expenses incurred to protect the property, and expenses and costs of suit including but not limited to filing fees, recording fees, title search and examination fees, fees due for service of process and such other costs as may be allowed by this Court.

In accordance with section 28.241 of the Florida Statutes

governing filing fees, Wells Fargo also filed an unsworn estimate of the amount in controversy. See § 28.241(1)(a) 2.a., Fla. Stat. (2013) (requiring parties instituting civil actions in circuit court relating to real property or mortgage foreclosures to pay a graduated filing fee based on the estimated value of their claims). That estimate stated, as did the verified complaint, the “Principal due on the note” was $3,331,190.81, an amount which alone exceeded the $250,000 minimum threshold stated in section 28.241 for payment of the maximum filing fee allowed. See § 28.241(1)(a) 2.d.(III), Fla. Stat. (2013) (requiring the payment of a filing fee in real property and mortgage foreclosure actions in the amount of “[o]ne thousand nine hundred dollars in all cases in which the value of the claim is $250,000 or more”).

On February 26, 2014, five months after this action was filed, Credo, as owner of the property securing the mortgage, filed two motions: a motion for summary judgment claiming that Wells Fargo lacked standing to pursue foreclosure and a motion to redeem the mortgage. The motion to redeem asked the trial court to determine the amount that had to be paid to redeem the mortgage, stating only the principal balance as alleged in the complaint as the amount due:

COMES NOW, the Defendant, Credo LLC, by and through its undersigned attorney, and hereby moves this Honorable Court for an order determining the sums required to redeem the mortgage alleged to be held by the Plaintiff, and as grounds thereof would state:

1. That the Movant is the owner of the real property subject to the instant action seeking to foreclose a mortgage allegedly owned and held by the Plaintiff.

2. That the Movant has an equitable and legal right to redeem the first mortgage in this matter in order to protect its real property and is ready willing and able to redeem the first mortgage sued upon herein upon a determination as to the redemption amount. The Plaintiff's complaint alleges a principal sum due and owing of $3,331,190.81 on a $3,000,000 note.

WHEREFORE, it is respectfully requested that this Honorable Court set the redemption amount of the Plaintiff's mortgage, to be paid on or before May 1, 2014, thereby allowing the Movant the opportunity to redeem the mortgage and removing it as a lien on the Movant's real property.

The same day this motion was filed, February 26, it was set by Credo's counsel to be heard only twelve days later for a non-evidentiary hearing on the trial court's five-minute motion calendar. When this motion was filed and notice provided to counsel, Wells Fargo was represented solely by Choice Legal Group, P.A. out of Ft. Lauderdale. At the time, Choice's cases were being transferred to the Albertelli law firm in Tampa. On March 5, the notice of hearing on the motion to redeem was e-mailed by Choice to Albertelli Law, but inadvertently not forwarded to an Albertelli attorney to handle.

Twelve days after the motion to redeem and the notice of hearing thereon were filed, the motion to redeem was heard. An attorney from Choice appeared, but no attorney from the Albertelli firm appeared. The hearing was not transcribed, thus, no record of it exists other than the trial court's order. That order recites the basis for its determination that Credo need pay $3,347,233.21—only $16,042.40 more than the principal amount alleged in the complaint—to redeem the mortgage, as: Credo's unsworn motion, the verified complaint (which stated only the principal amount then due on the loan), and argument of counsel:

ORDER ON CREDO'S MOTION TO REDEEM MORTGAGE

THIS CAUSE came on before the Court for hearing on March 10, 2014, upon Credo LLC's Motion to Redeem Mortgage, and the Court having reviewed the Motion, the Verified Complaint, argument of counsel, Fl. Stat. 45.0315

, and being otherwise fully advised in the premises therein, it is hereby,

ORDERED and ADJUDGED: That the Motion is GRANTED. Pursuant to Section 45.0315, Florida Statute, the Defendant may tender to the Plaintiff, on or before May 1, 2014, the total sum of $3,347,233.21, which upon tender shall constitute redemption of the mortgage in Miami–Dade County, Florida, Official Records Book 24869 at Page 4530, on the property legally described as Lot26 [sic], Block 16, Bay Point, according to the Plat thereof, recorded in plat book 40, page 63, of the public records of Miami–Dade County, Florida, commonly known as 4575 Sabal Palm Road, Miami, Florida 33134. Upon redemption, this Order shall constitute a satisfaction of said mortgage, extinguishing the mortgage of record. The tender shall be made by wire transfer to JPMorgan Chase Bank, N.A., Account ..., ABA Routing Number ..., Attention: Payoff Processing, Loan # 15891468; or by Mail to Chase, 3415 Vision Drive, Mail Code: OH4–7126, Columbus, OH 43219.

DONE and ORDERED in Chambers at Miami, Miami–Dade County, Florida on March 10, 2104[.]

Over a month later, on April 15, Albertelli Law filed a response to Credo's motion for summary judgment on the issue of standing. Two weeks later, on April 29, the court below entered an order approving an agreement between Credo and another party named in the foreclosure complaint as having an interest in the property at issue. The following day, Credo tendered the amount stated in the redemption order. Credo then conveyed the property to a third party.

On May 22, Wells Fargo moved for reconsideration of the March 10 redemption order or alternatively for an order vacating that order under rule 1.540.² That motion claimed, in pertinent part, that the amount due to redeem was unliquidated; that Wells Fargo was entitled to adequate notice; and that an evidentiary hearing was necessary to liquidate the amount due to redeem the mortgage. That motion was accompanied by an affidavit—the only sworn testimony in the record with regard to the amount due—that demonstrated that the redemption amount was $4,624,169.03, or $1,276,935.82 more than the amount set by the trial court:

On June 20, the same trial judge who signed the redemption order issued an order setting Wells Fargo's mortgage foreclosure action for trial on September 8. On September 4, that same judge continued the non-jury foreclosure trial until December 1. It was not until September 29 that Credo responded to Wells Fargo's motion for reconsideration or to vacate the redemption order.

On October 9, the trial court denied Wells Fargo's motion for reconsideration or alternatively to vacate the March 10 redemption order, finding that the motion was untimely; that Wells Fargo failed to demonstrate excusable neglect; that Wells Fargo failed to comply with rule 1.530³

; that damages were liquidated; that Wells Fargo did not appeal because damages were liquidated; and that section 45.0315 does not require a trial to redeem a mortgage. On November 6, Wells Fargo appealed from that order.

On November 7, the court below dismissed the foreclosure action in an order expressly recognizing that Wells Fargo had reserved “all appellate rights” and finding that “nothing in this Order shall constitute a waiver of those rights.” On November 13, Wells Fargo timely filed a notice of appeal from that order.

Our standard of review on this appeal is de novo. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010)

(confirming generally that questions of law arising from undisputed facts are reviewed de novo); Talbot v. Rosenbaum, 142 So.3d 965, 967 (Fla. 4th DCA 2014) (“Whether damages alleged are liquidated or unliquidated is a question of law subject to de novo review.”). Applying that standard here, we find that both the notice and the evidence presented below were insufficient as a matter of law to support the...