E & Y ASSETS, LLC, APPELLANT,
v.
TOTARAM SAHADEO AND PHULMATTI SAHADEO, APPELLEES
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The court held that a foreclosure plaintiff must present competent evidence of the amount owed, and failure to do so warrants dismissal.
Appellant's witness could not provide competent evidence of the amount owed on the note because the records were not in evidence. The trial court dism…
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We affirm the involuntary dismissal of this mortgage foreclosure action. Appellant’s witness at trial based his testimony on records that were not in evidence and was unable to provide competent evidence of the amount owed on the note. See Wolkoff v. Am. Home Mortg. Serv., Inc., 153 So.3d 280, 281 (Fla. 2d DCA 2014); see also Bank of Am., N.A. v. Delgado, 166 So.3d 857, 858 (Fla. 3d DCA
2015) (“Foreclosure plaintiffs must show: (1) an agreement; (2) a default; (3) an acceleration of debt to maturity; and (4) the amount due”) (emphasis added). “Typically a foreclosure plaintiff proves the amount of indebtedness through the testimony of a competent witness who can authenticate the mortgagee’s business records and confirm that they accurately reflect the amount owed on the mortgage.” Wolkoff, 153 So.3d at 281. Where a foreclosure plaintiff fails to prove the amount due at trial the proper remedy is dismissal. Id. at 283. This is not a cáse where the trial court erroneously admitted evidence of the amount owed on a note; in such a case it is appropriate to remand for further proceedings to determine the amount of the debt owed. See Sas v. Fed. Nat’l Mortg. Ass’n, 112 So.3d 778, 779 (Fla. 2d DCA 2013).
The trial court also dismissed for a reason separate from the failure of proof of the amount due. Appellant is correct that dismissal should not have also been based on the failure of the mortgagee to perform a condition precedent. Appellant generally pleaded the performance of a condition precedent. Fla. R. Civ. P. 1.120(c). Appellee failed to deny performance “specifically and with particularity.” Id. “An affirmative defense is waived unless it is pleaded.” Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010); see also Bank of Am., Nat’l Ass’n v. Asbury, 165 So.3d 808 (Fla. 2d DCA 2015); Godshalk v. Countrywide Home Loans Serv., L.P., 81 So.3d 626 (Fla. 5th DCA 2012).
Affirmed.
GROSS, MAY and CONNER, JJ., concur.
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Marlyn Tracey v. Wells Fargo Bank, 264 So. 3d 1152 (Fla. 2d DCA 2019)…2018) (explaining that a party is not entitled to a new trial when it has failed to meet its burden to establish an element of the case "unless that party's failure to meet its burden was the result of judicial error"); E & Y Assets, LLC v. Sahadeo, 180 So. 3d 1162, 1162 (Fla. 4th DCA 2015) ("Where a foreclosure plaintiff fails to prove the amount due at trial the proper remedy is dismissal.... [W]here the trial court erroneously admitted evidence of the amount owed on a note ... it is appropriate to remand fo…
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IVY Chase Apt. Prop. v. IVY Chase Apts., 352 So. 3d 33 (Fla. 2d DCA 2022)…bif, 424 So. 2d 171, 172 (Fla. 3d DCA 1983) ("Estoppel is an affirmative defense which must be pleaded and proved before relief can be granted." (citing Phoenix Ins. Co. v. McQueen, 286 So. 2d 570 (Fla. 1st DCA 1973))); E & Y Assets, LLC v. Sahadeo, 180 So. 3d 1162, 1163 (Fla. 4th DCA 2015) ("An affirmative defense is waived unless it is pleaded." (quoting Johnston v. Hudlett, 32 So. 3d 700, 704 (Fla. 4th DCA 2010))). The issue was not tried by consent because ICAP objected to the Debtors' presentation of evi…
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Mace v. M & T Bank (Fla. 2d DCA 2020)…S. Bank, Nat'l Ass'n v. Angeloni, 199 So. 3d 492, 494 (Fla. 4th DCA 2016) (declining to consider application of lost note statute because borrowers failed to raise argument in moving for involuntary dismissal); see also E & Y Assets, LLC v. Sahadeo, 180 So. 3d 1162, 1163 (Fla. 4th DCA 2015) (stating that "[a]ppellant is correct that dismissal should not have also been based on the failure of the mortgagee to perform a condition precedent," where the condition precedent was waived). - 34 - raised. See, e.g.,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014)
- SAS v. Fed. Nat'l Mortg. Ass'n, 112 So. 3d 778 (Fla. 2d DCA 2013)
- Johnston v. Hudlett, 32 So. 3d 700 (Fla. 4th DCA 2010)
- Bank OF Am. v. Asbury, 165 So. 3d 808 (Fla. 2d DCA 2015)
- Godshalk v. Countrywide Home Loans Servicing, L.P., 81 So. 3d 626 (Fla. 5th DCA 2012)
- Bank OF Am., N.A. v. Delgado, 166 So. 3d 857 (Fla. 3d DCA 2015)
- Ogden v. State, 166 So. 3d 857 (Fla. 1st DCA 2015)