NOT
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
An
appeal from the Circuit Court for Alachua County. Robert E.
Roundtree, Jr., Judge.
David
Rosenberg, Jarrett Cooper, and Cynthia L. Comras of
Robertson, Anschutz & Schneid, P.L., Boca Raton, for
Appellant.
Glorimil (Gloria) R. Walker and Judy Renee Collins, Three
Rivers Legal Services, Inc., Gainesville, for Appellee.
BILBREY, J.
Bayview
Loan Servicing, LLC, appeals a final order denying its claim
for foreclosure and the trial court's sua sponte
entry of a money judgment under the promissory
note.[1] Because Bayview proved its foreclosure
claim at the final hearing and no affirmative defenses to
foreclosure were proven by Debra Newell, the borrower, we
reverse the final order and remand for entry of a final
judgment of foreclosure.
The
initial complaint for foreclosure was filed by Bayview on
November 7, 2014. The copies of the note and mortgage
attached to the complaint both listed the street address of
the property on South U.S. Highway 441, Micanopy, Florida
32667, as the property intended to secure the loan. The
mortgage, in addition to the street address of the property,
listed the Alachua County Property Appraiser's parcel
identification number. Finally, the mortgage referenced a
metes and bounds description of the parcel, attached to the
mortgage as exhibit A. The exhibit A metes and bounds point
of beginning was "the Northwest corner of Lot 57 of the
LEITNER TRACT" in Alachua County. However, the corner
angles following the point of beginning were improperly
notated. While the digits for the angles were correct, the
degree symbols were missing, so that, for example, what
should have been "N. 85°26'03"
W." appeared in exhibit A as "N. 8526'03"
W."
Shortly
after the commencement of the foreclosure action, a previous
owner of the property who had been included in the original
list of defendants sought to be dismissed from the action. To
clarify that defendant's position that he no longer held
any interest in the securing real property and thus had no
interest in the foreclosure case, he and the title company
sought to correct the typographical errors in the deed to Ms.
Newell which had been filed in the Official Records of
Alachua County. As a result, a corrective warranty deed which
included the degree symbols in the notations of the angles in
the metes and bounds description, was prepared, recorded in
the Official Records, and filed in the foreclosure case on
March 17, 2015. Ms. Newell's grantor and the
grantor's former spouse were then dropped as parties to
the action.
The
case proceeded to final hearing upon Bayview's second
amended complaint, filed August 24, 2015.[2] In her answer to
the second amended complaint, Ms. Newell admitted the
allegations of paragraph 3 - that she had executed and
delivered the note and mortgage at issue, that the mortgage
had been recorded, and that the mortgage encumbered the
property described in the mortgage and owned and possessed by
Ms. Newell. The only affirmative defenses asserted as to the
second amended complaint were that the claim for reformation
of the mortgage was time-barred by the statute of limitations
and that Bayview had failed to mitigate its damages. No
affirmative defense to foreclosure of the mortgage was
asserted in the answer to the second amended complaint.
The
case progressed to a final hearing before a general
magistrate. See Fla. R. Civ. P. 1.491. Bayview
presented documentary evidence authenticated by its witness,
and the documents were admitted. Ms. Newell did not call any
witnesses or present any evidence. During closing arguments,
counsel for Ms. Newell argued that the mortgage was
"clearly erroneous, " apparently referring to the
lack of degree symbols in the metes and bounds description.
Counsel for Ms. Newell suggested that Bayview could recover a
money judgment on the note rather than foreclosing on the
mortgage, but counsel for Bayview did not agree and insisted
that the error was "nothing but a scrivener's
error" and that Bayview sought foreclosure rather than a
money judgment on the note alone.
The
magistrate found that Bayview had established its standing to
enforce the note via the foreclosure action and had presented
competent substantial evidence to prove that the loan was in
default and to prove the amounts due and owing. However, the
magistrate did not recommend any disposition on Bayview's
foreclosure claim, recommended that Bayview's claim for
mortgage reformation be dismissed as untimely, and found that
Bayview was "entitled to damages under the Promissory
Note." Bayview's exceptions to the magistrate's
report and recommendations, including its exception to the
entry of a money judgment on the note rather than a judgment
of foreclosure, were denied by the trial court. Bayview then
moved for rehearing, reiterating its position that it sought
foreclosure and not a money judgment and arguing that the
mortgage did not need reformation of the metes and bounds
description in order to support foreclosure. Bayview's
motion for rehearing was likewise denied. The final order on
appeal denied foreclosure without explanation and entered a
final money judgment on the note.
Bayview
never requested a money judgment on the note in any pleading
or motion, and objected consistently when this remedy was
suggested by Ms. Newell's attorney and recommended by the
magistrate. "A trial court is without jurisdiction to
award relief that was not requested in the pleadings or tried
by consent." Wachovia Mortg. Corp. v. Posti,
166 So.3d 944, 945 (Fla. 4th DCA 2015). Further,
"granting relief, which was neither requested by
appropriate pleadings, nor tried by consent, is a violation
of due process." Bank of Am., N.A. v. Nash, 200
So.3d 131, 135 (Fla. 5th DCA 2016) (citing Posti,
166 So.3d at 945-46). The money judgment on the note in this
case amounts to the trial court's sua sponte
conversion of Bayview's foreclosure claim into an unpled
claim for monetary relief. Accordingly, the portion of the
final order entering a money judgment on the note must be
reversed. See Heartwood 2, LLC, v. Dori, 208 So.3d
817 (Fla. 3d DCA 2017).
The
denial of Bayview's foreclosure claim must also be
reversed. The magistrate's finding that Bayview proved
the elements for foreclosure, including its standing, was not
challenged by exception and not rejected by the trial court.
Ms.
Newell never claimed, via affirmative defense or otherwise,
that the typographical errors in the metes and bounds
description of the real property rendered the mortgage
ineffective to encumber the property with a lien for the
mortgage. See § 697.02, Fla. Stat. (lien of
mortgage covers the property described therein). The street
address and property appraiser's parcel identification
number were never contested, and the defense never suggested
that the omission of the degree symbols in the metes and
bounds description would prevent either party or a surveyor
from locating the property affected by the lien using the lot
and tract information, address, or parcel identification
number. See Dori, 208 So.3d at 821 (holding that
"for a mortgage to create a valid lien, the mortgage
must ...