Bayview Loan Servicing, LLC v. Debra A. Newell
16-5173
| Fla. Dist. Ct. App. | Dec 5, 2017Background
- Bayview filed foreclosure on a note and mortgage against Debra Newell; the mortgage referenced street address, parcel ID, and a metes-and-bounds exhibit with missing degree symbols (typographical error).
- A corrective deed (adding the degree symbols) was later recorded and filed in the foreclosure case; Bayview proceeded on a second amended complaint seeking foreclosure (and had a separate reformation claim that was later dismissed as moot).
- Newell admitted execution, recording, and that the mortgage encumbered the property; she did not assert an affirmative defense that the metes-and-bounds typo voided the mortgage lien.
- At the final hearing before a general magistrate, Bayview proved standing, default, and amounts due; Newell presented no evidence and argued the mortgage was "clearly erroneous."
- The magistrate recommended damages under the promissory note but did not recommend foreclosure; the trial court entered a final order denying foreclosure and, sua sponte, entered a money judgment on the note.
- Bayview appealed, objecting that it never sought a money judgment and that the mortgage description (despite the typo) sufficiently identified the property for foreclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could enter a money judgment sua sponte when plaintiff sought foreclosure | Bayview: money judgment was not requested; court cannot grant unpled relief | Newell: suggested money judgment as alternative remedy | Reversed: court may not sua sponte convert foreclosure into unpled monetary judgment; money judgment vacated |
| Whether typographical omission of degree symbols in metes-and-bounds invalidates mortgage lien | Bayview: omission is a scrivener's error; street address, parcel ID, and lot/tract identify property; foreclosure proper | Newell: mortgage description "clearly erroneous" and thus insufficient to encumber property | Reversed denial of foreclosure: description was sufficient to locate property; no affirmative defense raised that omitted symbols defeated lien |
| Whether Bayview proved standing, default, and amounts due for foreclosure | Bayview: presented authenticated documents and testimony proving standing and amounts | Newell: did not dispute proof at hearing | Magistrate's finding of proof of foreclosure elements was affirmed; trial court did not reject those findings |
Key Cases Cited
- Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944 (Fla. 4th DCA 2015) (trial court may not grant relief not pleaded or tried by consent)
- Bank of Am., N.A. v. Nash, 200 So. 3d 131 (Fla. 5th DCA 2016) (awarding unpled relief violates due process)
- Heartwood 2, LLC v. Dori, 208 So. 3d 817 (Fla. 3d DCA 2017) (mortgage must contain sufficient description to enable locating property)
- Regions Bank v. Deluca, 97 So. 3d 879 (Fla. 2d DCA 2012) (minor mistakes in description do not defeat lien when property can be identified from the instrument)
- Sickler v. Melbourne State Bank, 159 So. 678 (Fla. 1935) (description sufficient if property can be ascertained and located from the instrument)
Result: Reversed the final order denying foreclosure and entering a money judgment; remanded for entry of a judgment of foreclosure in favor of Bayview.