Stanley v. Bank of America, N.A.

199 So. 3d 409, 2016 Fla. App. LEXIS 12448, 2016 WL 4382555
CourtDistrict Court of Appeal of Florida
DecidedAugust 17, 2016
DocketNo. 4D15-290
StatusPublished

This text of 199 So. 3d 409 (Stanley v. Bank of America, N.A.) 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.

Bluebook
Stanley v. Bank of America, N.A., 199 So. 3d 409, 2016 Fla. App. LEXIS 12448, 2016 WL 4382555 (Fla. Ct. App. 2016).

Opinion

KLINGENSMITH, J.

Michael Stanley a/k/a Michael A. Stanley and Gemerta Stanley a/k/a Gemerta C. Stanley (“appellants”) appeal from the trial court’s final judgment of foreclosure in favor of Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP (the “Bank”). The judgment was entered after the trial court rejected the magistrate’s recommendation that the case be dismissed without prejudice. For the reasons set forth below, we affirm on all issues raised in this appeal.

Appellants defaulted on their mortgage and were subsequently sent an acceleration letter by the Bank informing them that they owed a total of $6,609.56, and that they needed to make full payment on or before April 20, 2011 in order to cure. When appellants failed to pay in full before the due date, the Bank accelerated the loan and instituted this foreclosure action.

The trial court referred the case to a magistrate, who thereafter conducted a non-jury trial. After taking testimony and receiving evidence, the magistrate submitted a recommendation containing a single paragraph of purported findings of fact which stated, in its entirety:

The evidence established that the final acceleration/default letter sent to Defendants was provided on March 11, 2011 and required payment in the amount of $6,609.56 on or before April 20, 2011 in order to cure the default. The bank’s evidence established that the Defendants made payments between March 11, 2011 and April 20, 2011 in the amount of $6,791.16. This sum was sufficient to cure the default and no subsequent acceleration/default letters were sent to Defendants.

The recommendation then concluded that the case should be dismissed without prejudice for failure to comply with a condition precedent. The Bank thereafter filed exceptions to the magistrate’s recommendation, arguing that the evidence showed appellants had only paid $5,093.37 by April 20, 2011, which was insufficient to cure the default.

In response to the Bank’s filing, the trial court sent the report and recommendation back to the magistrate, with instructions to define the condition precedent that the Bank had failed to fulfill. The magistrate then issued a clarification order stating that, based on the testimony of the Bank’s witness, it appeared that appellants had cured the default by April 20, 2011. Thus, the finding that the Bank failed to comply with a condition precedent “stem[med] from the fact that [the Bank] never sent a subsequent acceleration letter to the bor[411]*411rowers after they had ‘caught up’ with the amount demanded.... ” Upon review, the trial court disagreed and rejected the magistrate’s recommendation, ruling that the Bank was entitled to final judgment of foreclosure.

It is the trial court’s duty to examine and carefully consider the evidence and determine whether, under the law and the facts, it is justified in entering a decree recommended by a magistrate. See French v. French, 12 So.3d 278, 279-80 (Fla. 5th DCA 2009) (“Given that the trial court was charged with determining whether the magistrate’s findings of fact were supported by competent evidence, the trial court itself should have discovered the errors in the course of making a careful review of the report and the transcript.”).

“A trial court’s decision to accept or reject a magistrate’s conclusions is .., reviewed for an abuse of discretion. A magistrate’s findings are subject to being set aside by the trial court when they are clearly erroneous or the magistrate misconceived the legal effect of the evidence.” Boyd v. Boyd, 168 So.3d 302, 304 (Fla. 4th DCA 2015) (alteration in original) (citations omitted) (internal quotation marks omitted); see also Glaister v. Glaister, 137 So.3d 513, 517 (Fla. 4th DCA 2014).

Here, the trial court properly set aside the magistrate’s findings because the conclusion reached was clearly erroneous based on the evidence presented, and the magistrate also misconceived the legal effect of that evidence. The unrebutted testimony presented by the Bank’s witness, as well as the payment history entered into evidence, reflect that appellants did not tender the amount necessary to cure the default by the due date; rather, the evidence very clearly proves that appellants only paid a total of $5,093.37 — less than the $6,609.56 specified in the acceleration letter.

The Bank’s witness, a mortgage resolution associate, was specifically asked on cross examination if appellants had tendered the required payments within the time period established by the Bank. She unequivocally answered “no,” and stated that appellants’ counsel was misreading the payment history:

Q. There were — there appears to be four different — pardon me ... yeah. There appears to be four different payments reflected on the account after March 21, 2011 and before April 20, 2011, the dates cited on the default letter in the amount of $1,697.79, is that correct?
A. No.
Q. Okay.
A. Let me double check here.
Q. Sure.
A. How many did you say, four?
Q. Four.
A. There were three.
Q. Can you point out to me the ones that you see?
A. March 25, 2011, April 5, 2011 and then April 13, 2011.

Appellants’ counsel’s mistake was confirmed during re-direct examination:

Q. ' Ms. Hosni, directing your attention to the notice of intent to accelerate, which is Exhibit 4. Did you note that there was a deadline of April 20, 2011 to make the payments set forth there?
A. Yes.
Q. Were the payments made by that date?.
A. They were not.
Q. How do you know that?
A. From the payment history. There were three payments made. There was one payment on March 24, 2011 that was [412]*412put into suspense first then taken out of suspense and then applied to the loan.
Q. So counsel had mentioned some $6,700 figure that was paid?
A. Yes.
Q. Was that incorrect?
A. That was incorrect.

As the fact-finder, a magistrate may. reject testimony that he or she disbelieves. E.g,, City of Orlando Police Dep’t v. Rose, 974 So.2d 554, 555 (Fla. 5th DCA 2008) (“The finder of fact is not required to believe the testimony of any -witness, even if unrebutted.”). However, there is a significant difference between merely finding a party’s position to be unpersuasive and misapprehending the evidence presented.

The only suggestion that sufficient payments were made came from appellants’ counsel, not from any testimony or other evidence. As the clarification order demonstrates, the magistrate apparently accepted the argument that appellants made sufficient payments to cure the default solely because it had been implied during cross examination of the Bank’s witness. This was improper. Considering the payment history in conjunction with the mortgage resolution associate’s testimony, it is clear that appellants did not pay enough to cure the default by April 20, 2011.

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Related

French v. French
12 So. 3d 278 (District Court of Appeal of Florida, 2009)
De Clements v. De Clements
662 So. 2d 1276 (District Court of Appeal of Florida, 1995)
CITY OF ORLANDO POLICE DEPARTMENT v. Rose
974 So. 2d 554 (District Court of Appeal of Florida, 2008)
Melissa R. Boyd v. Timothy M. Boyd
168 So. 3d 302 (District Court of Appeal of Florida, 2015)
Ricardo Ortiz, Nuria Almeida and Frank Padron v. PNC Bank, National Association
188 So. 3d 923 (District Court of Appeal of Florida, 2016)
Glaister v. Glaister
137 So. 3d 513 (District Court of Appeal of Florida, 2014)

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Bluebook (online)
199 So. 3d 409, 2016 Fla. App. LEXIS 12448, 2016 WL 4382555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanley-v-bank-of-america-na-fladistctapp-2016.