FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; James R. Thompson,
Paeth, pro se.
Michael Eisenband and Nicole Topper of Blank Rome LLP, Fort
Lauderdale, for Appellee.
VILLANTI, Chief Judge.
Paeth seeks review of the final judgment of foreclosure
entered in favor of U.S. Bank National Association. We reject
without comment Paeth's arguments addressed to the
Bank's standing and the sufficiency of its evidence to
support the order of foreclosure. However, we agree with
Paeth that the evidence introduced by the Bank to establish
the amount of Paeth's indebtedness does not support the
amounts included in the final judgment. Therefore, we reverse
the final judgment as to the amount of the indebtedness and
remand for further proceedings.
bench trial on its foreclosure complaint, the Bank offered
into evidence the note and mortgage, various allonges, a
modification of the note, a Pooling and Service Agreement,
and a payment history that began in 2001-when the Bank first
took possession of the note-and ended, for the most part, on
September 1, 2011. Paeth did not object to the introduction
of any of this documentary evidence at trial. Now, however,
she argues that the trial court erred by admitting the
payment history into evidence because it was hearsay, and she
argues that the payment history, once admitted, was
insufficient to support the amount of the indebtedness
included in the final judgment.
Paeth's argument concerning the admissibility of the
payment history, this issue is not properly before this court
because Paeth did not object to the admission of the document
below. While Paeth is entitled to raise the sufficiency of
the evidence on appeal without an objection raised below,
see Fla. R. Civ. P. 1.530(e), this rule does not
permit her to challenge the admissibility of evidence in the
absence of an objection-only the sufficiency of the admitted
evidence. Therefore, any objection to the admissibility of
the payment history was waived and cannot support a reversal
Paeth also argues that the payment history was legally
insufficient to support the trial court's determination
of the amount of indebtedness because it is incomplete-an
argument concerning the sufficiency of the admitted evidence
that is properly before this court in this appeal. We reject
Paeth's arguments concerning the amount of unpaid
principal and interest because those amounts are supported by
the evidence, including the note, the note modification, and
the payment history. However, the remaining amounts included
in the judgment-for property taxes, hazard insurance, and a
"prior escrow balance"-are not supported by any of
these documents. Instead, the final judgment includes
$7714.54 for these items, while the payment history shows a
balance of only $7216.67 for these items. Further, other
items included in the final judgment for filing fees,
"title information, " property inspections, and the
like are not supported by either the payment history, an
affidavit, or any other evidence in the record. Therefore,
the amounts awarded in the final judgment for all amounts
other than unpaid principal and interest are not supported by
the evidence introduced at trial, and we must reverse the
final judgment to the extent that it includes these amounts.
remaining question is the proper scope of the proceedings on
remand. This court has previously made a distinction between
cases in which evidence of indebtedness was improperly
admitted or was insufficient from those in which no evidence
of the amount of indebtedness was admitted. See Wolkoff
v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280,
282-83 (Fla. 2d DCA 2014). In the former cases, in which some
evidence was offered, the courts have remanded for further
proceedings at which the plaintiff could, in essence, try
again. See Sas v. Fed. Nat'l Mortg. Ass'n,
112 So.3d 778 (Fla. 2d DCA 2013); Kelsey v. SunTrust
Mortg., Inc., 131 So.3d 825 (Fla. 3d DCA 2014). In the
latter cases, however, in which the plaintiff failed to offer
any evidence of the amount of the indebtedness, the
courts have held that the proper remedy is to remand for an
involuntary dismissal rather than to give the party making
the error "an opportunity to retry their case."
Wolkoff, 153 So.3d at 283 (quoting Correa v.
U.S. Bank Nat'l Ass'n, 118 So.3d 952, 956 (Fla.
2d DCA 2013)).
as in Sas and Kelsey, the Bank offered
some evidence, albeit insufficient, to prove the
amount of indebtedness; therefore, as in Sas and
Kelsey, the Bank is entitled to further proceedings
on remand to determine the amount of the indebtedness.
Notably, this is the only relief Paeth requested in her
appeal. Therefore, on remand, the trial court should conduct
whatever further proceedings are needed to give the Bank an
opportunity to prove the amount of Paeth's indebtedness.
in part, reversed in part, and remanded for ...