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Rouffe v. CitiMortgage, Inc.

Florida Court of Appeals, Fourth District

March 21, 2018

JONATHAN ROUFFE and RACHEL PEARL a/k/a RACHEL ROUFFE, Appellants,
v.
CITIMORTGAGE, INC., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey D. Gillen, Judge; L.T. Case No. 50-2011-CA-018454-XXXX-MB.

          W. Trent Steele of Steele Law, Hobe Sound, for appellants.

          David Rosenberg and Jarrett Cooper of Robertson, Anschutz & Schneid, P.L., Boca Raton, for appellee.

          BELANGER, ROBERT, ASSOCIATE JUDGE.

         Appellants, Jonathan Rouffe and Rachel Pearl, a/k/a Rachel Rouffe, ("the Heirs"), appeal the final judgment of foreclosure entered in favor of appellee, CitiMortgage, Inc. ("Citi"). On appeal, the Heirs contend that the trial court erred in denying their motion for involuntary dismissal at trial, arguing that Citi failed to prove the borrower defaulted, Citi failed to provide evidence of a forbearance agreement, and failed to establish the correct date of default. For the reasons discussed below, we affirm in part and reverse in part with remand.

         In 2003, the borrower borrowed money to purchase her home. Citi acquired the note and mortgage which secured the borrower's loan.

         In March 2010, the borrower failed to make payments required under the loan. In March 2011, the borrower died, and in November 2011, Citi filed a foreclosure action to enforce the note and mortgage. The Heirs were heirs of the borrower, and were indispensable parties properly named in Citi's complaint.

         At trial, Citi's main witness testified regarding the date of default, but provided several dates, explaining that the borrower made partial payments for some time, so there was a date of "last full payment, " versus partial payments received.

         This witness also mentioned forbearance agreements between the borrower and Citi, and over Citi's objection, the Heirs' counsel questioned the witness regarding these agreements. Neither party, however, offered the agreements into evidence.

         After Citi rested, the Heirs moved for involuntary dismissal, arguing that Citi failed to provide the forbearance agreements, and therefore, failed to prove how and when the borrower defaulted. The trial court disagreed, denied the Heirs' motion, and eventually entered a final judgment of foreclosure. The Heirs gave notice of appeal.

         The applicable standard of review for a motion for involuntary dismissal is de novo. Deutsche Bank Nat'l Tr. Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012). A motion for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b) in a non-jury trial can be equated to a motion for directed verdict in a jury trial:

When an appellate court reviews the grant of a motion for involuntary dismissal, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.

Id.; see also Deutsche Bank Nat'l Tr. Co. v. Huber, 137 So.3d 562, 563-64 (Fla. 4th DCA 2014). On appeal, the Heirs argue, as they did below, that Citi failed to prove ...


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