Wells Fargo Bank, National Ass'n v. Sawh
194 So. 3d 475
Fla. Dist. Ct. App.2016Background
- Wells Fargo filed a mortgage foreclosure in Oct 2013 alleging $3,331,190.81 principal due and unspecified additional amounts (interest, taxes, insurance, costs).
- Credo LLC, owner of the mortgaged property, moved to redeem the mortgage and requested the court fix the redemption amount; the motion repeated the principal from the complaint but presented no evidentiary support for additional sums.
- Credo’s motion was set on the court’s five-minute motion calendar on 12 days’ notice; a non‑transcribed hearing occurred March 10, 2014, and the court ordered redemption at $3,347,233.21.
- Credo tendered that sum and conveyed the property; Wells Fargo later filed an affidavit asserting the true payoff exceeded $4.6 million (including accrued interest, escrow shortages, fees).
- Wells Fargo moved to vacate/reconsider, arguing the redemption amount was unliquidated and required an evidentiary hearing; the trial court denied relief and later dismissed the foreclosure action.
- The district court reversed: it vacated the redemption order and remanded for an evidentiary hearing to determine the proper redemption amount, and ordered Wells Fargo to reimburse Credo any sums paid under the March 10 order.
Issues
| Issue | Plaintiff's Argument (Wells Fargo) | Defendant's Argument (Credo) | Held |
|---|---|---|---|
| Whether the amount required to redeem was liquidated | Amount due was unliquidated; specific sums (interest, escrow, fees) required proof | The principal alleged in the complaint and the filing estimate established amount due | Court: Unliquidated — required evidentiary proof |
| Whether short notice on a non‑evidentiary calendar hearing satisfied due process | Credo had to give meaningful notice and an evidentiary hearing to fix unliquidated sums | Twelve‑day notice and argument on motion calendar were sufficient | Court: Insufficient notice; five‑minute calendar inappropriate for liquidating damages |
| Whether the unsworn section 28.241 filing/verified complaint cured lack of proof | Unsigned estimate and complaint do not establish amounts due under §45.0315 (expenses, interest, fees) | The repeated principal figure in the complaint and filing estimate obviated further proof | Court: Unsigned estimate and complaint do not substitute for evidence of amounts required to redeem |
| Appropriate remedy where redemption order issued without evidentiary support | Vacate redemption order and remand for an evidentiary hearing; reimburse Credo for amounts paid under defective order | Implicitly: allow redemption to stand because Credo paid and relied on order | Court: Vacated redemption order, reversed dismissal, remanded for hearing, ordered reimbursement to Credo |
Key Cases Cited
- Ciprian-Escapa v. City of Orlando, 172 So. 3d 485 (Fla. 2d DCA 2015) (distinguishes liquidated from unliquidated damages where pleaded sums are minimum or "to date")
- Bowman v. Kingsland Dev., Inc., 432 So. 2d 660 (Fla. 5th DCA 1983) (damages liquidated when determinable by arithmetical calculation; otherwise require proof)
- Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662 (Fla. 3d DCA 2007) (party entitled to notice and hearing to present evidence on unliquidated damages)
- Security Bank, N.A. v. BellSouth Adver. & Publ’g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996) (setting unliquidated damages without notice and proof is fundamental error)
- Rutshaw v. Arakas, 549 So. 2d 769 (Fla. 3d DCA 1989) (insufficient one‑day notice to set damages trial was error)
- Pierce v. Anglin, 721 So. 2d 781 (Fla. 1st DCA 1998) (explains when damages are liquidated vs. unliquidated)