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Bank of New York Mellon v. Diaz

Florida Court of Appeals, Fourth District

December 13, 2017

THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK, as Trustee for Certificate Holders of CWABS INC., ASSET-BACKED CERTIFICATES, SERIES 2007-5, Appellant,
v.
MINERVA DIAZ, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No. CACE-14-013685 (11).

          Edward B. Cole of Cole Law Firm, P.A., Palm Harbor, for appellant.

          Rachel M. Coe of Polaris Legal Group, Lighthouse Point, for appellee.

          Conner, J.

         Our opinion in this case serves as a reminder of two principles: (1) the grant of involuntary dismissal as a sanction requires findings of facts and conclusions of law compliant with case law; and (2) a trial court may not involuntarily dismiss a case during trial for insufficiency of evidence prior to the completion of presentation of evidence by the plaintiff. Because the order under review fails to explain the legal authority for dismissal, we are compelled to reverse and quash the order. If dismissal was granted as a sanction, the order of dismissal fails to include the requisite findings of facts and conclusions of law. If dismissal was granted due to insufficiency of evidence to establish a prima facie case at trial, the dismissal was premature. Because the reason for dismissal is ambiguous, we give alternative instructions on remand.

         Background

         The Bank filed the underlying foreclosure action against the appellee ("the title owner") and junior lienholders. The title owner purchased the subject property at a prior foreclosure sale brought by a homeowner's association. The title owner was not the borrower under the note and mortgage. The title owner filed two affirmative defenses which survived a motion to strike: lack of standing and failure to comply with conditions precedent. A judicial default was entered against the borrower, who made no appearance below.

         During pre-trial discovery, the title owner moved to compel better responses to its first production request. The trial court sustained the Bank's objections to production of various documents, such as any bailee letters and pooling or servicing agreements.

         Pursuant to the pre-trial order instructing the parties to make all exhibits available for viewing in advance of trial, the Bank filed its exhibit list. Two days later, the title owner sought production of unredacted copies of all of the documents identified in the Bank's exhibit list. The Bank objected on various grounds, including confidentiality. The title owner moved to compel better answers to its request for production, but later withdrew the motion.

         The trial judge who tried the case was not the judge who presided over the pretrial proceedings. The trial transcript reflects that the Bank brought two witnesses to trial, one representing the current mortgage servicer, the other representing the prior servicer.

         During direct examination of the Bank's first witness, the title owner objected to testimony concerning the Bank's status as owner and holder of the note and mortgage. The title owner argued that prior to trial, the Bank had objected to its request to produce various documents and the pretrial judge had sustained those objections. The title owner also argued that in preparing for trial, it requested copies of the Bank's trial exhibits, which the Bank failed to produce in violation of the pretrial order requiring the Bank to provide access to all of its trial exhibits. The title owner explained that the only document the Bank provided pretrial was a power of attorney, thus, the title owner would be objecting to any other documents the Bank intended to rely upon that were not produced pretrial.

         The trial court inquired as to the basis of the objections to the pretrial discovery sustained by the pretrial judge. The Bank explained that the title owner was not the borrower on the mortgage and that the objections were sustained because the only information that the title owner was entitled to obtain is the payoff amount for the loan. The Bank asserted that disclosure of information regarding its borrower account could subject it to a felony for violation of confidentiality. It also asserted that the title owner had withdrawn its motion to compel the request for production of the items in the Bank's trial exhibit list and further contended that the two affirmative defenses regarding standing and conditions precedent were improper because the title owner lacked privity of contract. In response, the title owner maintained that, as a party at trial, it was entitled to any document that the Bank intended to use during the trial as an exhibit. After further arguments about other matters concerning notice, the lis pendens, and the prior foreclosure by the homeowner's association, the title owner's objection was overruled.

         The Bank entered the note and mortgage into evidence. When the Bank elicited testimony concerning the bailee letter and sought to have it admitted into evidence, the title owner again objected and informed the court that it would be asserting prejudice and unfair surprise due to the Bank's failure to comply with the order for trial preparation, which was a matter that had not been ruled upon. The trial court sustained the objection, noting that the document should have been presented prior to trial. When the Bank attempted to introduce the payment history into evidence, the title owner again raised the same objection. The title owner clarified for the court that, while its first motion to compel better responses to its first request for production was denied because the Bank's objections to that request were sustained, and while its subsequent motion to compel better responses to its second request to produce the Bank's trial exhibits had been withdrawn, the second request to produce the trial exhibits had yet to be ruled upon. The trial court overruled the objection and admitted the payment history. The trial continued in the same manner, with the title owner objecting ...


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