LUIS H. MORALES and CECILIA MORALES, Appellants,
FIFTH THIRD BANK, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No.
Alexander Bravo, Ricardo R. Corona and Ricardo M. Corona of
the Corona Law Firm, P.A., Miami, for appellants.
Y. Rios and Michael W. Smith of Brock & Scott, PLLC, Fort
Lauderdale, for appellee.
borrowers appeal from a final judgment on a promissory note
entered in favor of the lender regarding the borrowers'
default on a loan to buy an empty lot. Appellants argue,
among other things, that the trial court erred by denying
their motion for involuntary dismissal because the Bank
failed to plead breach of a loan modification agreement. We
agree, reversing and remanding for entry of involuntary
2005, appellants executed an adjustable rate note in the
amount of $125, 000 in favor of the appellee, Fifth Third
Mortgage Company. The beginning interest rate under the note
was 7.875%. Appellants defaulted on the loan. In 2008, they
entered into a loan modification agreement that changed the
terms of the loan to a fixed interest rate of 6.5% and
lowered their monthly payments. The parties agreed that the
unpaid principal balance on the note was $120, 105.90.
defaulted again, and in 2011, Fifth Third Bank, a separate
entity from appellee and servicer of the note, filed suit to
accelerate payment under the note. The complaint was amended
a few times, and in the second amended complaint, appellee
filed suit under its own name. Appellee attached a copy of
the adjustable rate note to this complaint, but appellee
neither mentioned the modification nor attached it to the
borrowers answered, listing as an affirmative defense that
appellee failed to properly credit the borrowers' account
with the collected payments. In reply, appellee filed a copy
of the payment history on the note, but appellee again did
not mention the modification. The payment history reflects
the 2008 modification and decreased monthly payments on the
unsuccessfully moved for summary judgment, attaching an
affidavit in support of the motion showing the 6.5% interest
rate under the modification. In connection with the motion,
appellee filed the original adjustable rate note, as well as
the 2008 modification that is signed by appellants and shows
the fixed interest rate.
continuance, the case proceeded to trial in 2017, where the
court received into evidence a copy of the note, default
letter, judgment figures, and payoff interest details. Final
judgment was entered in favor of appellee, and the borrowers
appealed. In Morales v. Fifth Third Mortgage Co.,
238 So.3d 280 (Fla. 4th DCA 2018), we reversed and remanded
for a new trial because the trial court violated the best
evidence rule by admitting a copy of the note instead of the
2018, the case again proceeded to trial, which led to the
instant appeal. The trial court noted that the original note
was filed and that the modification was attached to it.
Appellee presented only one witness, an employee of Fifth
Third Bank who worked as a litigation portfolio analyst. The
witness identified the original, adjustable rate note.
However, when appellee moved to enter the modification into
evidence, the borrowers objected, arguing that appellee was
required to amend its complaint to plead a theory of recovery
under the modification. The court disagreed and allowed the
modification into evidence. Appellee then moved the demand
letter and payment history into evidence.
witness testified that the loan was in default, and no
payments were made since 2009. During cross-examination by
the borrowers, the witness stated that the amounts that
appellee was seeking to recover were based on the
appellee rested, the borrowers moved for involuntary
dismissal. They contended, among other things, that appellee
did not conform the pleadings to the evidence, that the
modification upon which appellee relied was neither pled nor
attached to the operative complaint, and that it would be
error for the court to allow appellee to amend its complaint
to conform to the evidence. Appellee responded that it was
suing on the original note, and the modification was neither
a negotiable instrument nor the operative document in the
case. Appellee's counsel agreed with the court ...