MARC COLSON AND KRISTA COLSON, APPELLANTS,
v.
STATE FARM BANK, F.S.B. AND WACHOVIA BANK, NATIONAL ASSOCIATION, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Colsons challenged a foreclosure judgment entered against them following a bench trial. The appellate court found insufficient evidence supporting the damages awarded and the attorney's fees and costs, requiring reversal in part and remand for further proceedings on those issues.
The court affirmed that State Farm established standing and that the Colsons defaulted, but reversed the judgment because there was insufficient evidence of the damages and attorney's fees awarded. The court remanded for further proceedings rather than directing involuntary dismissal, as the Colsons had not filed a motion to dismiss or for directed verdict at the close of evidence.
[1] A party seeking to foreclose on a mortgage must introduce the original note and mortgage into evidence or provide a satisfactory explanation for their absence before the…
[2] A sufficiency of the evidence claim regarding damages in a foreclosure action may be raised for the first time on appeal.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The crux of the Colsons' argument is that the amount of indebtedness cannot be extracted and calculated from the payment history, the only evidence State Farm presented as to damages. The payment history consists of twenty-six pages of coded data entries with no final totals.”
Establishes the core problem: insufficient evidence of damages in the record presented at trial.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceState Farm Bank commenced a foreclosure action against Marc and Krista Colson in February 2009. At trial in November 2013, State Farm's sole witness w…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Foundation For Evidence cases and more on FLexlaw
Marc and Krista Colson challenge a final judgment of foreclosure entered in favor of State Farm Bank, F.S.B., following a bench trial. Of the, three issues the Col-sons raise, two have merit and require reversal impart.
State Farm commenced a mortgage foreclosure action against the Col-sons in February 2009. The case ultimately went to trial in November 2013. At trial, State Farm’s sole witness was an employee of Center, FSB. Through this witness State Farm introduced into evidence a power of attorney between State Farm and Center, >a breach and acceleration letter addressed to the Colsons, and a loan payment history. State Farm also attempted to introduce the original note and mortgage, which the trial court required to be filed on record with the clerk rather than admitted into evidence.1 .
With regard to the loan payment history, State Farm inquired of its witness whether the figures in the proposed final judgment comported with the numbers in Center’s business records. The proposed final judgmént was not in evidence nor wás *1040it a business record upon which the witness could rely. On cross-examination, the witness testified that he was not aware of the accounting procedures for State Farm. At the close of evidence, the Colsons moved to have State Farm’s witness’ testimony stricken as unreliable. The motion was denied and the court proceeded to execute the final judgment proposed by State Farm. The issue of attorney’s fees and costs was raised following entry of the final judgment.
The Colsons argue that there was no evidence of the damages included in the final judgment and that State Farm’s witness merely affirmed that the numbers in the proposed final judgment were correct without elaboration or explanation. This is a sufficiency of the evidence claim and our review is for competent, substantial evidence. See Wagner v. Bank of Am,, N.A., 143 So.3d 447, 448 (Fla. 2d DCA 2014). As has been consistently stated in foreclosure cases, a sufficiency of the evidence claim may be raised for the first time on appeal. See Fla. R. Civ. P. 1.530(e); Lacomhe v. Deutsche Bank Nat’l Trust Co., 149 So.3d 152, 153 (Fla. 1st DCA 2014).
The crux of the Colsons’ argument is that the amount of indebtedness cannot be extracted and calculated from the payment history, the only evidence State Farm presented as to damages.2 The payment history consists of twenty-six pages of coded data entries with no final totals. Some of those twenty-six pages appear to be computer screenshots while others are spreadsheets. The print dates on the documents range from 2006 to 2013. There was no testimony explaining these documents or the figures in them, nor was there testimony as to the amount of indebtedness. This is true for each line item of damages on the final judgment. Additionally, the transcript of the trial reflects that the court executed the final judgment immediately upon finding in favor of State Farm. The final judgment was rendered the same day. Thus, the court could not have reviewed the payment history and determined that the final judgment figures were accurate from the evidence provided.
The Colsons also contend that there is no evidence to support the court’s award of attorney’s fees and costs. State Farm filed affidavits of attorney’s fees and costs the day before the trial but those affidavits were not submitted into evidence at the trial. In fact, following the court’s entry of the final judgment in favor of State Farm counsel for State Farm stated that he had affidavits if the court needed them and that he could file them separately.
While the Colsons rely on the general rule that “when the record on appeal is devoid of competent substantial evidence to support the attorney’s fee award, the appellate court will reverse the award without remand for additional evidentiary findings,” where the record includes some evidence supporting the fee and cost award, this court may remand for further proceedings. See Diwakar v. Montecito *1041 Palm Beach Condo. Ass’n, 143 So.3d 958, 961 (Fla. 4th DCA 2014). Remand for “an evidentiary hearing on the amount of attorney’s fees and costs sought by the bank” is necessary and proper where the only evidence of the fees and costs “was an affidavit filed by the bank’s counsel prior to trial.” Wagner, 143 So.3d at 448.
In seeking reversal, the Colsons rely, in part, on this court’s decision in Wolkoff v. American Home Mortgage Servicing, Inc., 153 So.3d 280, 282 (Fla. 2d DCA 2014), where this court not only reversed a final judgment of foreclosure but remanded with directions that the trial court enter an involuntary dismissal of the case. Such action is inappropriate here. The Colsons did not move to dismiss the action at the close of evidence or otherwise move for judgment on the pleadings or a directed verdict. And although the Wolkoff opinion is silent as to any motion made by the Wolkoffs at the close of evidence, the record in that case reflects that the Wolkoffs moved for judgment on the pleadings. The court treated the motion as one for involuntary dismissal. See Salauddin v. Bank of Am., N.A., 150 So.3d 1189, 1190 (Fla. 4th DCA 2014) (citing Charlotte Asphalt, Inc. v. Cape Cave Corp., 406 So.2d 1234, 1236 (Fla. 2d DCA 1981) (explaining that motions for directed verdict and motions for involuntary dismissal at a nonjury trial are governed by the same principles)). It is only by virtue of a motion to dismiss or motion for directed verdict that this court could direct dismissal on remand. See, e.g., Burdeshaw v. Bank of N.Y. Mellon, 148 So.3d 819, 826-27 (Fla. 1st DCA 2014). But see Beauchamp v. Bank of N.Y., 150 So.3d 827 (Fla. 4th DCA 2014) (affirming judgment of foreclosure except as to amount due under note and remanding for further proceedings where defendant had filed a motion for involuntary dismissal).
It is undisputed that State Farm established it had standing as the holder of the note and mortgage and that the Colsons defaulted under the note. However, the total lack of evidence as to the damages stated in the final judgment requires reversal. Thus, we affirm in part and reverse in part.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this option.
VILLANTI, C.J., and CRENSHAW, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
-
Michel v. The Bank OF NEW York Mellon, 191 So. 3d 981 (Fla. 2d DCA 2016)…they were “obligated” to pay counsel a “reasonable fee” for those services. Because the > bank did not-present any evidence of attorney’s fees at trial, we reverse the fee award without, remand on that issue. See Colson v. State Farm Bank, F.S.B., 183 So. 3d 1038, 1040 (Fla. 2d DCA 2015) (explaining that “when the record on appeal is devoid of competent substantial evidence to support the attorney’s fee award, the appellate court will reverse the award without remand for additional evidentiary findings” (quo…
-
Marlyn Tracey v. Wells Fargo Bank, 264 So. 3d 1152 (Fla. 2d DCA 2019)…ving first admitted those business records"). It may even be an understatement since one can find varying remand directions in other kinds of civil cases not involving residential mortgage foreclosures. See, e.g., Colson v. State Farm Bank, F.S.B., 183 So. 3d 1038, 1040 (Fla. 2d DCA 2015) (recognizing "the general rule that 'when the record on appeal is devoid of competent substantial evidence to support the attorney's fee award, the appellate court will reverse the award without remand for additional evident…
-
Winchel v. Pennymac Corp., 222 So. 3d 639 (Fla. 2d DCA 2017)…r. Winchel’s attorney was absent from the trial—and remand for an order of involuntary dismissal is thus inappropriate. See Fla. R. Civ. P. 1.420(b) (providing that a "party may move” for an involuntary dismissal); Colson v. State Farm Bank, F.S.B., 183 So. 3d 1038, 1041 (Fla. 2d DCA 2015) (stating that remand for an order of involuntary dismissal is inappropriate where no such motion was made). Mr. Winchel argues that we should remand for entry of a judgment in his favor, and because PennyMac failed to prove…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014)
- Deutsche Bank Nat'l Tr. Co. for Ameriquest Mortg. Sec., Inc. v. Huber, 137 So. 3d 562 (Fla. 4th DCA 2014)
- Anastacia S. Lacombe and Max P. Lacombe v. Deutsche Bank Nat'l Tr. Co. for Long Beach Mortg. Loan Tr., 149 So. 3d 152 (Fla. 1st DCA 2014)
- Diwakar v. Montecito Palm Beach Condo. Ass'n, Inc., 143 So. 3d 958 (Fla. 4th DCA 2014)
- Wamco Xxviii, Ltd. v. Integrated Elec. Environments, Inc., 903 So. 2d 230 (Fla. 2d DCA 2005)
- Downing v. The First Nat'l Bank OF Lake City, 81 So. 2d 486 (Fla. 1955)
- Beauchamp v. The Bank OF NEW York, 150 So. 3d 827 (Fla. 4th DCA 2014)
- Wagner v. Bank OF Am., N.A., 143 So. 3d 447 (Fla. 2d DCA 2014)
- Llloyd Steve Burdeshaw and Teresa Burdeshaw v. The Bank OF NEW York Mellon (fka The Bank of N.Y.) for Mastr Alternative Loan Tr. 2006-2, 148 So. 3d 819 (Fla. 1st DCA 2014)
- Mohammad Salauddin v. Bank OF Am., N.A., 150 So. 3d 1189 (Fla. 4th DCA 2014)