E&Y Assets, LLC v. Totaram Sahadeo and Phulmatti Sahadeo

District Court of Appeal of Florida

E&Y Assets, LLC v. Totaram Sahadeo and Phulmatti Sahadeo

180 So. 3d 1162, 2015 Fla. App. LEXIS 18414, 2015 WL 8295569

CourtDistrict Court of Appeal of Florida

DecidedDecember 9, 2015

Docket4D14-4054

StatusPublished

Cited by3 cases

This text of 180 So. 3d 1162 (E&Y Assets, LLC v. Totaram Sahadeo and Phulmatti Sahadeo) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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E&Y Assets, LLC v. Totaram Sahadeo and Phulmatti Sahadeo, 180 So. 3d 1162, 2015 Fla. App. LEXIS 18414, 2015 WL 8295569 (Fla. Ct. App. 2015).

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Opinion

PER CURIAM.

We affirm the involuntary dismissal of this mortgage foreclosure action. Appellant’s witness at trial based his testimony on records that were not in evidence and was unable to provide competent evidence of the amount owed on the note. See Wolkoff v. Am. Home Mortg. Serv., Inc., 153 So.3d 280, 281 (Fla. 2d DCA 2014); see also Bank of Am., N.A. v. Delgado, 166 So.3d 857, 858 (Fla. 3d DCA

2015) (“Foreclosure plaintiffs must show: (1) an agreement; (2) a default; (3) an acceleration of debt to maturity; and (4) the amount due”) (emphasis added). “Typically a foreclosure plaintiff proves the amount of indebtedness through the testimony of a competent witness who can authenticate the mortgagee’s business records and confirm that they accurately reflect the amount owed on the mortgage.” Wolkoff, 153 So.3d at 281. Where a foreclosure plaintiff fails to prove the amount due at trial the proper remedy is dismissal. Id. at 283. This is not a cáse where the trial court erroneously admitted evidence of the amount owed on a note; in such a case it is appropriate to remand for further proceedings to determine the amount of the debt owed. See Sas v. Fed. Nat’l Mortg. Ass’n, 112 So.3d 778, 779 (Fla. 2d DCA 2013).

The trial court also dismissed for a reason separate from the failure of proof of the amount due. Appellant is correct that dismissal should not have also been based on the failure of the mortgagee to perform a condition precedent. Appellant generally pleaded the performance of a condition precedent. Fla. R. Civ. P. 1.120(c). Appellee failed to deny performance “specifically and with particularity.” Id. “An affirmative defense is waived unless it is pleaded.” Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010); see also Bank of Am., Nat’l Ass’n v. Asbury, 165 So.3d 808 (Fla. 2d DCA 2015); Godshalk v. Countrywide Home Loans Serv., L.P., 81 So.3d 626 (Fla. 5th DCA 2012).

Affirmed.

GROSS, MAY and CONNER, JJ., concur.

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PER CURIAM.

We affirm the involuntary dismissal of this mortgage foreclosure action. Appellant’s witness at trial based his testimony on records that were not in evidence and was unable to provide competent evidence of the amount owed on the note. See Wolkoff v. Am. Home Mortg. Serv., Inc., 153 So.3d 280, 281 (Fla. 2d DCA 2014); see also Bank of Am., N.A. v. Delgado, 166 So.3d 857, 858 (Fla. 3d DCA

2015) (“Foreclosure plaintiffs must show: (1) an agreement; (2) a default; (3) an acceleration of debt to maturity; and (4) the amount due”) (emphasis added). “Typically a foreclosure plaintiff proves the amount of indebtedness through the testimony of a competent witness who can authenticate the mortgagee’s business records and confirm that they accurately reflect the amount owed on the mortgage.” Wolkoff, 153 So.3d at 281. Where a foreclosure plaintiff fails to prove the amount due at trial the proper remedy is dismissal. Id. at 283. This is not a cáse where the trial court erroneously admitted evidence of the amount owed on a note; in such a case it is appropriate to remand for further proceedings to determine the amount of the debt owed. See Sas v. Fed. Nat’l Mortg. Ass’n, 112 So.3d 778, 779 (Fla. 2d DCA 2013).

The trial court also dismissed for a reason separate from the failure of proof of the amount due. Appellant is correct that dismissal should not have also been based on the failure of the mortgagee to perform a condition precedent. Appellant generally pleaded the performance of a condition precedent. Fla. R. Civ. P. 1.120(c). Appellee failed to deny performance “specifically and with particularity.” Id. “An affirmative defense is waived unless it is pleaded.” Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010); see also Bank of Am., Nat’l Ass’n v. Asbury, 165 So.3d 808 (Fla. 2d DCA 2015); Godshalk v. Countrywide Home Loans Serv., L.P., 81 So.3d 626 (Fla. 5th DCA 2012).

Affirmed.

GROSS, MAY and CONNER, JJ., concur.

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180 So. 3d 1162, 2015 Fla. App. LEXIS 18414, 2015 WL 8295569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ey-assets-llc-v-totaram-sahadeo-and-phulmatti-sahadeo-fladistctapp-2015.

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