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COURT ORDERS NEW TRIAL FINDING PARTIAL PAYMENT HISTORY ESTABLISHED PRIMA FACIE CASE ON FORECLOSURE DAMAGES

This month the Fourth DCA reversed the trial court’s order of dismissal of a foreclosure initiated by Deutsche Bank, as Trustee of a mortgage backed trust, (“the Bank”) finding the Bank’s failure to “enter into evidence the entire payment history…” did not constitute a basis for dismissal contrary to the trial court’s holding. Deutsche Bank Tr. Co. Americas as Tr. for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates Series 2006-QO1 v. JB Inv. Realty, LLC,. The Court did not provide much background; however, from the opinion it is clear the loan originated in 2005 and there was a default in July 2012. JB Investment Realty either took out the mortgage in 2005 or subsequently obtained an interest in the mortgaged property and was named as a defendant in the Bank’s foreclosure action.

The matter proceeded to trial and the Bank’s servicer introduced a partial payment history into evidence over objection. The payment history reflected transactions between February 2008 to August 2018 but did not include transactions from the origin of the loan to February 2008. Additionally, “[t]he witness did not know who serviced the loan” from 2005 to February 2008 “or why the principal of the loan had increased during this timeframe.” However, the witness testified “that the bank was not seeking any interest or damages from prior to 2012.” JB Investment Realty moved for an involuntary dismissal based on the incomplete payment history and the trial court granted the motion finding “that the Fourth District requires the ‘entire history of the loan … from the beginning’” to foreclose.  The Bank appealed the dismissal to the Fourth DCA.

Contrary to the trial court’s finding, the Fourth DCA concluded the Bank

made a prima facie showing of the amount of indebtedness by offering the payment history from February 2008 to August 2018 as well as witness testimony as to the amounts due and owing.

The Court further explained that it has never required “the entire payment history” to foreclose a mortgage. The Court reasoned if the entire payment history was required, a bank  “never would be able to foreclose” if the payment history were unavailable.  The Court went on to explain that the lower Court’s conclusion was not consistent with Florida law “as each subsequent default creates a distinct cause of action subject to a different calculation of damages.”

The Court explained the payment history required in a foreclosure proceeding will be contingent on the damages sought by the bank. Here, since the Bank only sought damages from 2012 and proffered a payment history from February 2008 forward, it was error to dismiss the case based on an incomplete payment history. The Court remanded the matter for a new trial.