IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
BAYVIEW LOAN SERVICING, NOT FINAL UNTIL TIME EXPIRES TO LLC, FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appellant, CASE NO. 1D16-5173 v.
DEBRA A. NEWELL, et al.,
Appellee.
_____________________________/
Opinion filed December 6, 2017.
An appeal from the Circuit Court for Alachua County. Robert E. Roundtree, Jr., Judge.
David Rosenberg, Jarrett Cooper, and Cynthia L. Comras of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Appellant.
Glorimil (Gloria) R. Walker and Judy Renee Collins, Three Rivers Legal Services, Inc., Gainesville, for Appellee.
BILBREY, J.
Bayview Loan Servicing, LLC, appeals a final order denying its claim for
foreclosure and the trial court’s sua sponte entry of a money judgment under the
promissory note. 1 Because Bayview proved its foreclosure claim at the final
1 The final order also dismissed Bayview’s claim for deed reformation (Count II of hearing and no affirmative defenses to foreclosure were proven by Debra Newell,
the borrower, we reverse the final order and remand for entry of a final judgment
of foreclosure.
The initial complaint for foreclosure was filed by Bayview on November 7,
2014. The copies of the note and mortgage attached to the complaint both listed
the street address of the property on South U.S. Highway 441, Micanopy, Florida
32667, as the property intended to secure the loan. The mortgage, in addition to
the street address of the property, listed the Alachua County Property Appraiser’s
parcel identification number. Finally, the mortgage referenced a metes and bounds
description of the parcel, attached to the mortgage as exhibit A. The exhibit A
metes and bounds point of beginning was “the Northwest corner of Lot 57 of the
LEITNER TRACT” in Alachua County. However, the corner angles following the
point of beginning were improperly notated. While the digits for the angles were
correct, the degree symbols were missing, so that, for example, what should have
been “N. 85°26’03” W.” appeared in exhibit A as “N. 8526’03” W.”
Shortly after the commencement of the foreclosure action, a previous owner
of the property who had been included in the original list of defendants sought to
be dismissed from the action. To clarify that defendant’s position that he no longer
second amended complaint) and did not dispose of Bayview’s claim for mortgage reformation (Count III of second amended complaint). However, Bayview does not challenge these aspects of the final order. 2 held any interest in the securing real property and thus had no interest in the
foreclosure case, he and the title company sought to correct the typographical
errors in the deed to Ms. Newell which had been filed in the Official Records of
Alachua County. As a result, a corrective warranty deed which included the
degree symbols in the notations of the angles in the metes and bounds description,
was prepared, recorded in the Official Records, and filed in the foreclosure case on
March 17, 2015. Ms. Newell’s grantor and the grantor’s former spouse were then
dropped as parties to the action.
The case proceeded to final hearing upon Bayview’s second amended
complaint, filed August 24, 2015. 2 In her answer to the second amended
complaint, Ms. Newell admitted the allegations of paragraph 3 — that she had
executed and delivered the note and mortgage at issue, that the mortgage had been
recorded, and that the mortgage encumbered the property described in the
mortgage and owned and possessed by Ms. Newell. The only affirmative defenses
asserted as to the second amended complaint were that the claim for reformation of
the mortgage was time-barred by the statute of limitations and that Bayview had
failed to mitigate its damages. No affirmative defense to foreclosure of the
mortgage was asserted in the answer to the second amended complaint.
2 Despite the filing of the corrected deed, Bayview’s second amended complaint retained a count for reformation of the deed. This count was properly deemed moot by the general magistrate, dismissed by the trial court, and such dismissal is not challenged on appeal. 3 The case progressed to a final hearing before a general magistrate. See Fla.
R. Civ. P. 1.491. Bayview presented documentary evidence authenticated by its
witness, and the documents were admitted. Ms. Newell did not call any witnesses
or present any evidence. During closing arguments, counsel for Ms. Newell
argued that the mortgage was “clearly erroneous,” apparently referring to the lack
of degree symbols in the metes and bounds description. Counsel for Ms. Newell
suggested that Bayview could recover a money judgment on the note rather than
foreclosing on the mortgage, but counsel for Bayview did not agree and insisted
that the error was “nothing but a scrivener’s error” and that Bayview sought
foreclosure rather than a money judgment on the note alone.
The magistrate found that Bayview had established its standing to enforce
the note via the foreclosure action and had presented competent substantial
evidence to prove that the loan was in default and to prove the amounts due and
owing. However, the magistrate did not recommend any disposition on Bayview’s
foreclosure claim, recommended that Bayview’s claim for mortgage reformation
be dismissed as untimely, and found that Bayview was “entitled to damages under
the Promissory Note.” Bayview’s exceptions to the magistrate’s report and
recommendations, including its exception to the entry of a money judgment on the
note rather than a judgment of foreclosure, were denied by the trial court. Bayview
then moved for rehearing, reiterating its position that it sought foreclosure and not
4 a money judgment and arguing that the mortgage did not need reformation of the
metes and bounds description in order to support foreclosure. Bayview’s motion
for rehearing was likewise denied. The final order on appeal denied foreclosure
without explanation and entered a final money judgment on the note.
Bayview never requested a money judgment on the note in any pleading or
motion, and objected consistently when this remedy was suggested by Ms.
Newell’s attorney and recommended by the magistrate. “A trial court is without
jurisdiction to award relief that was not requested in the pleadings or tried by
consent.” Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944, 945 (Fla. 4th DCA
2015). Further, “granting relief, which was neither requested by appropriate
pleadings, nor tried by consent, is a violation of due process.” Bank of Am., N.A. v.
Nash, 200 So. 3d 131, 135 (Fla. 5th DCA 2016) (citing Posti, 166 So. 3d at 945-
46). The money judgment on the note in this case amounts to the trial court’s sua
sponte conversion of Bayview’s foreclosure claim into an unpled claim for
monetary relief. Accordingly, the portion of the final order entering a money
judgment on the note must be reversed. See Heartwood 2, LLC, v. Dori, 208 So.
3d 817 (Fla. 3d DCA 2017).
The denial of Bayview’s foreclosure claim must also be reversed. The
magistrate’s finding that Bayview proved the elements for foreclosure, including
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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
BAYVIEW LOAN SERVICING, NOT FINAL UNTIL TIME EXPIRES TO LLC, FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appellant, CASE NO. 1D16-5173 v.
DEBRA A. NEWELL, et al.,
Appellee.
_____________________________/
Opinion filed December 6, 2017.
An appeal from the Circuit Court for Alachua County. Robert E. Roundtree, Jr., Judge.
David Rosenberg, Jarrett Cooper, and Cynthia L. Comras of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Appellant.
Glorimil (Gloria) R. Walker and Judy Renee Collins, Three Rivers Legal Services, Inc., Gainesville, for Appellee.
BILBREY, J.
Bayview Loan Servicing, LLC, appeals a final order denying its claim for
foreclosure and the trial court’s sua sponte entry of a money judgment under the
promissory note. 1 Because Bayview proved its foreclosure claim at the final
1 The final order also dismissed Bayview’s claim for deed reformation (Count II of hearing and no affirmative defenses to foreclosure were proven by Debra Newell,
the borrower, we reverse the final order and remand for entry of a final judgment
of foreclosure.
The initial complaint for foreclosure was filed by Bayview on November 7,
2014. The copies of the note and mortgage attached to the complaint both listed
the street address of the property on South U.S. Highway 441, Micanopy, Florida
32667, as the property intended to secure the loan. The mortgage, in addition to
the street address of the property, listed the Alachua County Property Appraiser’s
parcel identification number. Finally, the mortgage referenced a metes and bounds
description of the parcel, attached to the mortgage as exhibit A. The exhibit A
metes and bounds point of beginning was “the Northwest corner of Lot 57 of the
LEITNER TRACT” in Alachua County. However, the corner angles following the
point of beginning were improperly notated. While the digits for the angles were
correct, the degree symbols were missing, so that, for example, what should have
been “N. 85°26’03” W.” appeared in exhibit A as “N. 8526’03” W.”
Shortly after the commencement of the foreclosure action, a previous owner
of the property who had been included in the original list of defendants sought to
be dismissed from the action. To clarify that defendant’s position that he no longer
second amended complaint) and did not dispose of Bayview’s claim for mortgage reformation (Count III of second amended complaint). However, Bayview does not challenge these aspects of the final order. 2 held any interest in the securing real property and thus had no interest in the
foreclosure case, he and the title company sought to correct the typographical
errors in the deed to Ms. Newell which had been filed in the Official Records of
Alachua County. As a result, a corrective warranty deed which included the
degree symbols in the notations of the angles in the metes and bounds description,
was prepared, recorded in the Official Records, and filed in the foreclosure case on
March 17, 2015. Ms. Newell’s grantor and the grantor’s former spouse were then
dropped as parties to the action.
The case proceeded to final hearing upon Bayview’s second amended
complaint, filed August 24, 2015. 2 In her answer to the second amended
complaint, Ms. Newell admitted the allegations of paragraph 3 — that she had
executed and delivered the note and mortgage at issue, that the mortgage had been
recorded, and that the mortgage encumbered the property described in the
mortgage and owned and possessed by Ms. Newell. The only affirmative defenses
asserted as to the second amended complaint were that the claim for reformation of
the mortgage was time-barred by the statute of limitations and that Bayview had
failed to mitigate its damages. No affirmative defense to foreclosure of the
mortgage was asserted in the answer to the second amended complaint.
2 Despite the filing of the corrected deed, Bayview’s second amended complaint retained a count for reformation of the deed. This count was properly deemed moot by the general magistrate, dismissed by the trial court, and such dismissal is not challenged on appeal. 3 The case progressed to a final hearing before a general magistrate. See Fla.
R. Civ. P. 1.491. Bayview presented documentary evidence authenticated by its
witness, and the documents were admitted. Ms. Newell did not call any witnesses
or present any evidence. During closing arguments, counsel for Ms. Newell
argued that the mortgage was “clearly erroneous,” apparently referring to the lack
of degree symbols in the metes and bounds description. Counsel for Ms. Newell
suggested that Bayview could recover a money judgment on the note rather than
foreclosing on the mortgage, but counsel for Bayview did not agree and insisted
that the error was “nothing but a scrivener’s error” and that Bayview sought
foreclosure rather than a money judgment on the note alone.
The magistrate found that Bayview had established its standing to enforce
the note via the foreclosure action and had presented competent substantial
evidence to prove that the loan was in default and to prove the amounts due and
owing. However, the magistrate did not recommend any disposition on Bayview’s
foreclosure claim, recommended that Bayview’s claim for mortgage reformation
be dismissed as untimely, and found that Bayview was “entitled to damages under
the Promissory Note.” Bayview’s exceptions to the magistrate’s report and
recommendations, including its exception to the entry of a money judgment on the
note rather than a judgment of foreclosure, were denied by the trial court. Bayview
then moved for rehearing, reiterating its position that it sought foreclosure and not
4 a money judgment and arguing that the mortgage did not need reformation of the
metes and bounds description in order to support foreclosure. Bayview’s motion
for rehearing was likewise denied. The final order on appeal denied foreclosure
without explanation and entered a final money judgment on the note.
Bayview never requested a money judgment on the note in any pleading or
motion, and objected consistently when this remedy was suggested by Ms.
Newell’s attorney and recommended by the magistrate. “A trial court is without
jurisdiction to award relief that was not requested in the pleadings or tried by
consent.” Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944, 945 (Fla. 4th DCA
2015). Further, “granting relief, which was neither requested by appropriate
pleadings, nor tried by consent, is a violation of due process.” Bank of Am., N.A. v.
Nash, 200 So. 3d 131, 135 (Fla. 5th DCA 2016) (citing Posti, 166 So. 3d at 945-
46). The money judgment on the note in this case amounts to the trial court’s sua
sponte conversion of Bayview’s foreclosure claim into an unpled claim for
monetary relief. Accordingly, the portion of the final order entering a money
judgment on the note must be reversed. See Heartwood 2, LLC, v. Dori, 208 So.
3d 817 (Fla. 3d DCA 2017).
The denial of Bayview’s foreclosure claim must also be reversed. The
magistrate’s finding that Bayview proved the elements for foreclosure, including
its standing, was not challenged by exception and not rejected by the trial court.
5 Ms. Newell never claimed, via affirmative defense or otherwise, that the
typographical errors in the metes and bounds description of the real property
rendered the mortgage ineffective to encumber the property with a lien for the
mortgage. See § 697.02, Fla. Stat. (lien of mortgage covers the property described
therein). The street address and property appraiser’s parcel identification number
were never contested, and the defense never suggested that the omission of the
degree symbols in the metes and bounds description would prevent either party or
a surveyor from locating the property affected by the lien using the lot and tract
information, address, or parcel identification number. See Dori, 208 So. 3d at 821
(holding that “for a mortgage to create a valid lien, the mortgage must contain a
sufficient description of the property to enable the parties to ascertain and locate
the property affected by the lien”) (citing Sickler v. Melbourne State Bank, 118 Fla.
468, 159 So. 678, 679 (1935)).
Even if such defense had been raised, “Florida courts have repeatedly held
descriptions of property in mortgages sufficient despite minor mistakes and
irregularities where the description of the property intended to be encumbered
could be determined from a review of the entire instrument.” Regions Bank v.
Deluca, 97 So. 3d 879, 884-85 (Fla. 2d DCA 2012). It was undisputed here that
the correct lot and tract as well as street address were stated on both the note and
the mortgage, and in addition the mortgage listed the parcel identification number.
6 In light of the foregoing, the final order denying Bayview’s action for
foreclosure and entering a money judgment on the note is reversed, and this cause
is remanded for entry of a judgment of foreclosure in favor of Bayview.
REVERSED and REMANDED.
ROBERTS and KELSEY, JJ., CONCUR.