RECEIVED, 7/27/2015 5:40 PM, Joanne P.

Simmons, Fifth District Court of Appeal

IN THE DISTRICT COURT OF APPEAL

FIFTH DISTRICT OF FLORIDA
CASE NO. 5D14-4511
LT. CASE NO. 59-2011-CA-004389
BANK OF AMERICA, N.A., etc.,
Appellant,
v.
LINDA A. NASH, et al.,
Appellees.

APPELLANT, BANK OF AMERICA, N.A.S

INITIAL BRIEF
On Appeal from the Circuit Court of the
Eighteenth Judicial Circuit in and for Seminole County, Florida
MARY J. WALTER
Florida Bar No. 45162
mjw@lgplaw.com
LIEBLER GONZALEZ & PORTUONDO
Counsel for Appellant, Bank of America, N.A.
Courthouse Tower - 25th Floor
44 West Flagler Street
Miami, FL 33130
(305) 379-0400

TABLE OF CONTENTS
TABLE OF CITATIONS ......................................................................................... ii
PRELIMINARY STATEMENT ............................................................................... 1
STATEMENT OF THE CASE AND FACTS .......................................................... 2
SUMMARY OF ARGUMENT ................................................................................. 8
ARGUMENT ........................................................................................................... 11
I.

THE TRIAL COURT ERRED IN ENTERING A FINAL

JUDGMENT THAT INVALIDATED THE NOTE AND
MORTGAGE, REQUIRED THE BANK TO RETURN
MORTGAGE PAYMENTS, AND AWARDED ATTORNEYS
FEES TO BORROWER ................................................................................ 11
A.
B.

C.

II.

Standard of Review ............................................................................. 11

The Trial Court Erred in Invalidating the Note and Mortgage,
Because the Ruling Did Not Conform to the Courts Oral
Findings, Granted Relief Beyond the Pleadings, Was Not
Supported by the Evidence, and Was Contrary to Law ...................... 12
The Trial Court Erred in Awarding Attorneys Fees to
Borrower under Florida Statute Section 57.105, and a
Contract It Found Void ....................................................................... 21

THE BANK PRESENTED A PRIMA FACIE CASE FOR

FORECLOSURE AND BORROWER PRESENTED NO
COUNTEREVIDENCE ................................................................................ 22
A.
B.

Standard of Review ............................................................................. 22

The Bank Established an Unrefuted, Prima Facie Case for
Mortgage Foreclosure ......................................................................... 23

CONCLUSION ........................................................................................................ 26
CERTIFICATE OF SERVICE ................................................................................ 27
CERTIFICATE OF TYPE SIZE & STYLE ............................................................ 27
i

TABLE OF CITATIONS
Cases
Page
BAC Home Loans Servicing, Inc. v. Headley,
130 So. 3d 703 (Fla. 3d DCA 2013) ..............................................................14, 17
Bank of Am. v. Asbury,
2D14-1965, 40 Fla. L. Weekly D1230 (Fla. 2d DCA May 27, 2015)...........24, 25
Bank of Am., N.A. v. Delgado,
3D13-910, 40 Fla. L. Weekly D1080 (Fla. 3d DCA May 6, 2015)..................... 23
Carnival Leisure Indus. Ltd. v. Arviv,
655 So. 2d 177 (Fla. 3d DCA 1995) .................................................................... 22
Cooke v. Ins. Co. of N. Am.,
652 So. 2d 1154 (Fla. 2d DCA 1995). ................................................................. 24
Corp. Mgmt. Advisors, Inc. v. Boghos,
756 So. 2d 246 (Fla. 5th DCA 2000) ................................................................... 13
Dukes v. Dukes,
19 So. 3d 338 (Fla. 2d DCA 2009) ................................................................ 12-13
Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC,
87 So. 3d 14 (Fla. 4th DCA 2012) ....................................................................... 23
Ernest v. Carter,
368 So. 2d 428 (Fla. 2d DCA 1979) .................................................................... 23
Garcia v. Stewart,
906 So. 2d 1117 (Fla. 4th DCA 2005) .....................................................15, 16, 17
Godshalk v. Countrywide Home Loans Servicing, L.P.,
81 So. 3d 626 (Fla. 5th DCA 2012) ..................................................................... 24
Harvey v. Deutsche Bank Natl Trust Co.,
69 So. 3d 300 (Fla. 4th DCA 2011) ..................................................................... 25
ii

Hewitt, Coleman & Assocs. v. Lymas,

460 So. 2d 467 (Fla. 4th DCA 1984) .............................................................17, 19
Instituto Patriotico Y Docente San Carlos, Inc. v. Cuban Am. Natl Found.,
667 So. 2d 490 (Fla. 3d DCA 1996) .................................................................... 15
Inter-Active Servs., Inc. v. Heathrow Master Assn, Inc.,
721 So. 2d 433 (Fla. 5th DCA 1998) ................................................................... 11
Kelsey v. SunTrust Mortg., Inc.,
131 So. 3d 825 (Fla. 3d DCA 2014) .................................................................... 23
Leon Shaffer Golnick Adver., Inc. v. Cedar,
423 So. 2d 1015 (Fla. 4th DCA 1982) ................................................................. 17
Lovett v. Lovett,
112 So. 768 (1927) ............................................................................................... 15
M.D. v. Dept of Children & Family Servs.,
924 So. 2d 827 (Fla. 2d DCA 2005) .................................................................... 13
McKenzie Check Advance of Fla., LLC v. Betts,
112 So. 3d 1176 (Fla. 2013)........................................................................... 22-23
Mgmt. Comput. Controls, Inc. v. Charles Perry Constr., Inc.,
743 So. 2d 627 (Fla. 1st DCA 1999) ................................................................... 11
Perlow v. Berg-Perlow,
875 So. 2d 383 (Fla. 2004)................................................................................... 12
Pub. Defender, Eleventh Judicial Circuit of Fla. v. State,
115 So. 3d 261 (Fla. 2013)................................................................................... 23
Ross v. Botha,
867 So. 2d 567 (Fla. 4th DCA 2004) .............................................................13, 14
Servedio v. U.S. Bank Natl Assn,
46 So. 3d 1105 (Fla. 4th DCA 2010) ............................................................. 17-18
iii

Surgical Partners, LLC v. Choi,

100 So. 3d 1267 (Fla. 4th DCA 2012) ................................................................. 22
Whitley v. Royal Trails Prop. Owners Assn,
910 So. 2d 381 (Fla. 5th DCA 2005) .............................................................11, 12
Yampol v. Turnberry Isle S. Condo. Assn, Inc.,
143 So. 3d 1144 (Fla. 3d DCA 2014) ...................................................... 14-15, 17
Other Authorities
Fla. R. Civ. P. 1.100 .................................................................................................15
Fla. R. Civ. P. 1.120 .................................................................................................24
Fla. R. Civ. P. 1.140 .................................................................................................24
Fla. Stat. 494.0022 ......................................................................................... 19, 20
Fla. Stat. 494.00255 (2014)...................................................................................20
Fla. Stat. 494.0041 (2005).....................................................................................20
Fla. Stat. 494.006 (2005).......................................................................................19
Fla. Stat. 57.105 ....................................................................................................21
Fla. Stat. 607.1501 ................................................................................................20
Fla. Stat. 607.1502 ......................................................................................... 20, 21
Fla. Stat. 671.201 ..................................................................................................25
Fla. Stat. 673.3011 ................................................................................................25

iv

PRELIMINARY STATEMENT
This is an appeal from a final judgment denying Bank of Americas
foreclosure action, finding the promissory note and mortgage to be void, and
entering judgment for Linda A. Nash in the amount of $75,608.72. This is also an
appeal from a supplemental final judgment awarding Nash $67,499.70 in
attorneys fees and costs. Plaintiff/Appellant, Bank of America, N.A., will be
referred to as the Bank. Defendant/Appellee, Linda A. Nash, will be referred to
as the Borrower. Other terms will be defined where they appear. The following
designations will also be used:
Rv__:__:__

- Record volume number: page number :: line

number

STATEMENT OF CASE AND FACTS

On May 24, 2005, Borrower executed a promissory note secured by a
mortgage. RvI: 1433. The note identified the lender as Americas Wholesale
Lender. RvI: 29. Countrywide Home Loans, Inc. (Countrywide) subsequently
indorsed the note in blank indicating that Countrywide was a New York
Corporation doing business as Americas Wholesale Lender.

RvI: 31.

The

mortgage stated the lender was Americas Wholesale Lender, a corporation

originated and existing under the laws of New York and identified the Mortgage
Electronic Registration Systems, Inc. (MERS) as the mortgagee.

RvI: 14.

MERS later assigned the mortgage to BAC Home Loans Servicing, LP (BAC),
the Banks predecessor. RvI: 9.
Borrower defaulted on her loan payment due November 1, 2010. RvII: 377
88. On December 31, 2010, BAC sent Borrower a pre-acceleration notice of
default and intent to accelerate. RvII: 379. Borrower failed to cure the default.
RvII: 38188. On November 7, 2011, the Bank, as successor by merger to BAC,
filed a complaint to foreclose on Borrowers note and mortgage. RvI: 133. The
Bank alleged that Borrower was in default as of November 1, 2010, and that she
owed a principal balance of $32,528.77. RvI: 2. The Bank also alleged that it was
entitled to foreclose on the note and mortgage under Florida Statute section
673.3011, and that all conditions precedent had been performed or had occurred.
2

RvI: 2. The Bank attached the indorsed note, the mortgage, and the assignment of
mortgage from MERS to BAC as exhibits to the complaint. RvI: 9, 1433. The
Bank filed the original note and mortgage on February 9, 2012. RvI: 6383.
On January 23, 2014, Borrower filed her first amended answer and
affirmative defenses.

RvI: 15375.

Borrower generally denied the Banks

allegation that it complied with conditions precedent, but did not specifically state
how the Bank failed to comply. RvI: 154. In her affirmative defenses, Borrower
challenged the Banks standing to foreclose, alleging that the attachments to the
Banks complaint were contradictory, as an entity cannot be both a d/b/a (as
suggested by the indorsement on the note) and a corporation (as suggested by the
mortgage). RvI: 15575. Specifically, Borrower claimed that the Bank lacked
standing if Americas Wholesale Lender was a corporation because the
assignment of the note was invalid. RvI: 155. Borrower also claimed that if
Americas Wholesale Lender was a fictitious name, the note and mortgage were
invalid.

RvI: 157.

Finally, Borrower alleged that the mortgage was invalid

because Americas Wholesale Lender was not incorporated until 2008. RvI: 155.
Borrower did not assert any counterclaims against the Bank. RvI-III: passim.
The case proceeded to trial on September 15, 2014. RvII: 32122. The
Bank called Chad Anderson, a mortgage resolution associate, as its witness. RvIII:
48182. Anderson identified the original note and mortgage and testified about the
3

Borrowers payment history and BACs pre-acceleration notice of default. RvIII:

48492.

Anderson also testified that the note was indorsed in blank and

transferred to Countrywide Home Loans Servicing, LP, on May 27, 2005, two days
after closing. RvIII: 498500. He stated that the Bank acquired Countrywide
Home Loans Servicing, LP through a merger with BAC Home Loans Servicing,
LP. RvIII: 49899. Anderson testified that BAC sent the pre-acceleration letter to
Borrower pursuant to the terms of the mortgage. RvIII: 507.
On voir dire, Borrower asked Anderson about the identity of the lender and
Americas Wholesale Lenders status as a corporation or a d/b/a. RvIII: 492505.
Anderson testified that Americas Wholesale Lender was a business name for
Countrywide.

RvIII: 497, 499500, 503.

Anderson testified that he had no

knowledge about the formation of Americas Wholesale Lender, whether it had a

lenders license or was authorized to do business in Florida under Florida Statute
section 607.1506. RvIII: 497, 515517.
During Andersons testimony, Borrowers counsel offered to submit a
memorandum after trial that would address the identity of Americas Wholesale
Lender.

RvIII: 502.

The Banks counsel said that she hadnt seen the

memorandum and objected due to the late submission. RvIII: 502, 503. The court
stated, Lets not get bogged down in this right now. Its something I can read at

the end of trial. . . . Lets go ahead and continue to voir dire. RvIII: 502. The
court also told counsel, [D]ont worry about this right now. RvIII: 503.
Following extensive voir dire, the court admitted the Banks exhibits into
evidence. RvIII: 512. Nonetheless, after both sides rested, the court ruled in favor
of Borrower. RvIII: 53132. The court stated:
I dont think it was possible to really spell out the chain
of holders in this mortgage. You may think he did, but
Im not satisfied that he was able to do that. There is no
receipt of the default letter. So therefore, a condition
precedent of the mortgage has not been met. Im just not
satisfied with the -- his knowledge of Countrywide, and I
can understand that. Its a big mystery organization as
far as Im concerned from everything I have ever heard
about it, and he doesnt know when the note was
acquired by the plaintiff, which is a big stumbling block
in my mind. He may know that it was -- he may say that
it was held, but he cant give me a date when it was
actually acquired by them. So that makes his testimony
rather troubling to the court.
So, therefore, Im ruling for the defendant on this case. I
dont think youve been able to prove your case. In
fairness to you, I dont think its your fault. I think it is
Countrywides fault that they didnt make a record
properly -- properly document, and, therefore, Im
finding in favor of the defendant on this case.
RvIII: 53132.
The court then asked Borrowers counsel to submit a proposed final
judgment, stating: [I]f you want to insert the reasons from your memorandum, I
dont need to read your memorandum. You can put that -- incorporate any of that
5

you want into the final judgment, to make yourself a little more bullet proof if
there is an appeal taken. RvIII: 53233. The Bank timely objected to Borrowers
proposed final judgment on the grounds that it was not an accurate reflection of the
ruling at trial. RvII: 39093.
Over the Banks objection, the court entered final judgment on October 16,
2014, not only dismissing the Banks case but also voiding the note and mortgage.
RvIII: 45558. The final judgment stated:
a) Americas Wholesale Lender, a New York
corporation, the Lender specifically named in the
mortgage, did not file this action, did not appear at
trial, and did not assign any of the interest in the
mortgage.
b) The note and mortgage are void because the alleged
Lender, Americas Wholesale Lender, stated to be a
New York corporation, was not in fact incorporated in
the year 2005 or subsequently at any time, either by
Countrywide Home Loans, or the Bank, or any of
their related corporate entities or agents.
c) Americas Wholesale Lender, stated to be a
corporation under the laws of New York, the alleged
Lender in this case, was not licensed as a mortgage
lender in Florida in the year 2005, or thereafter, and
the alleged mortgage loan is therefore, invalid and
void.
d) Americas Wholesale Lender, stated to be a New
York corporation, did not have authority to do
business in Florida under Florida Statute section
607.1506 and the alleged mortgage loan is therefore
invalid and void.
e) Plaintiff and its predecessors in interest had no right to
receive payment on the mortgage loan because the
loan was invalid and therefore void because the
6

corporate mortgagee named therein, was non-existent,

and no valid mortgage loan was ever held by Plaintiff
or its predecessors in interest.
RvIII: 45657 9. Based on the finding that the note and mortgage were void, the
court also ordered the Bank to repay all of Borrowers prior mortgage payments.
RvIII: 45758 10-11, 13. The judgment stated: Defendant has presented to this
Court, a computation of the amount of said payments and the interest due thereon
from the date of each respective payment to September 3, 2014 . . . . RvIII: 458
13. The judgment found that Borrower was entitled to recover, with interest, a
total of $75,680.72. RvIII: 458 13. This amount was never addressed at trial.
RvII: 32389; RvIII: 476534.
Pursuant to the terms of Florida Statute section 57.105, the court also
ordered that, as the prevailing party, Borrower was entitled to attorneys fees and
costs. RvIII: 45758 12, 14. Borrower had previously filed a motion for
supplemental final judgment awarding attorneys fees to the prevailing party based
on fee provisions in the note and mortgage. RvIII: 41129. The same day it
entered final judgment, the trial court entered a supplemental judgment awarding
Borrower prevailing party attorneys fees and costs of $67,799.70. RvIII: 45354.
The Bank moved for rehearing on November 4, 2014, which the trial court denied
on November 24, 2014. RvIII: 45973, 542.
This appeal followed.
7

SUMMARY OF ARGUMENT
The trial court erred as a matter of law in entering final judgment for
Borrower.

Specifically, the trial courts final judgment was contrary to law

because it included findings that were not supported by the record, invalidated the
note and mortgage, ordered the Bank to return all mortgage payments, and
awarded attorneys fees to Borrower. These rulings are neither supported by the
record nor by black letter law. Moreover, the Bank presented an unrefuted prima
facie case for foreclosure. As such, the Bank respectfully requests that the Court
overturn the final judgment and remand this matter back to the trial court.
First, the written final judgment includes findings that the court did not make
at trial. At trial, the court found in Borrowers favor based on an alleged lack of
standing and failure to comply with conditions precedent. The court then invited
Borrower to add findings to the final judgment but failed to review them.
Therefore, the written final judgment unilaterally expanded the courts ruling at
trial by invalidating the note and mortgage and granting monetary relief. Thus, the
judgment improperly reflected Borrowers position, rather than the independent
judgment of the court.
Second, the trial court lacked jurisdiction to invalidate the note and
mortgage because Borrower did not request this affirmative relief in the pleadings.
Not only did the court lack jurisdiction, but the Borrower did not present any
8

evidence to support the invalidation of the note and mortgage. Moreover, the
Banks witness did not provide testimony about the Banks license or authority to
transact business. Finally, Borrower did not provide any evidence, nor did the
court cite any evidence, to support the monetary judgment the court ordered
against the Bank.
Third, the court did not have authority to invalidate the note and mortgage
under Florida law. At the time Borrower obtained her loan from Countrywide, the
Florida Statutes provided exceptions to the license requirements for national banks
and excluded lending from the definition of business activity. Thus, the Bank and
its predecessors were not required to obtain a license or a certificate of authority to
enter into a loan agreement with Borrower. Moreover, the Florida Statutes provide
that the failure to obtain a license or a certificate of authority to transact business
does not impair the validity of any contract. Thus, the issues of licensing and
authority to transact business are irrelevant as to the enforceability of the note and
mortgage, and the trial court erred in finding the note and mortgage invalid.
Ironically, the court also ordered attorneys fees in the supplemental final judgment
even though the court wrongfully invalidated the note and mortgage. If the note
and mortgage were invalid, the fee provision in the mortgage would be as well.
Finally, the Bank presented a prima facie case for mortgage foreclosure at
trial. The trial courts two stated reasons for ruling in favor of Borrower were
9

erroneous. First, the trial court stated that there was an issue with compliance with
conditions precedent because Borrower did not receive the notice of default.
However, as Borrower failed to raise that issue as a defense in its pleadings,
compliance with conditions precedent could not have been an issue at trial.
Second, the court found that the Bank lacked standing to prosecute the foreclosure
action because the Banks witness was unable to provide the date that the Banks
predecessor acquired the note. The Banks witness, however, testified that the
Banks predecessor received the note two days after closing, and Borrower
presented no counterevidence. Because the Bank presented an unrefuted prima
facie case, the trial court should have entered final judgment in the Banks favor.
As such, the Bank respectfully requests that the Court reverse the final judgment
and remand for entry of final judgment of foreclosure in favor of the Bank.

10

ARGUMENT
I.

THE TRIAL COURT ERRED IN ENTERING A FINAL JUDGMENT

THAT INVALIDATED THE NOTE AND MORTGAGE, REQUIRED
THE BANK TO RETURN MORTGAGE PAYMENTS, AND
AWARDED ATTORNEYS FEES TO BORROWER
A.

Standard of Review

A trial courts interpretation and construction of a contract is reviewed de

novo with attention to well-settled rules of interpretation.

Mgmt. Comput.

Controls, Inc. v. Charles Perry Constr., Inc., 743 So. 2d 627, 630 (Fla. 1st DCA
1999). Interpretation of a contract is a question of law, and an appellate court
may reach a construction contrary to that of the trial court. Whitley v. Royal
Trails Prop. Owners Assn, 910 So. 2d 381, 383 (Fla. 5th DCA 2005) (citing
Inter-Active Servs., Inc. v. Heathrow Master Assn, Inc., 721 So. 2d 433 (Fla. 5th
DCA 1998)).

The parties intention governs contract construction and

interpretation; but, the court should reach an interpretation consistent with

reason, probability, and the practical aspect of the transaction between the parties.
Whitley, 910 So. 2d at 383. When two or more documents are executed by the
same parties at or near the same time, in the course of the same transaction, and
concern the same subject matter, they will be read and construed together. . . .
Thus, the meaning is gathered from a general view of the whole writing, with all of

11

its parts being compared, used, and construed, each with reference to the others.
Id.
B.

The Trial Court Erred in Invalidating the Note and Mortgage,

Because the Ruling Did Not Conform to the Courts Oral Findings,
Granted Relief Beyond the Pleadings, Was Not Supported by the
Evidence, and Was Contrary to Law

The trial court erred in entering the final judgment, as the judgment (1) was
inconsistent with courts oral ruling at the end of trial; (2) granted relief beyond the
scope of the pleadings; (3) was unsupported by the evidence; and (4) was
unsustainable under Florida law. The Bank respectfully requests that the Court
reverse the final judgment.
1.

The Final Judgment Does Not Accurately Reflect the Ruling

at Trial

First, the trial court erred in entering the final judgment because it did not
accurately reflect the courts ruling at trial. While a trial court may ask the parties
to submit a proposed final judgment, it may not adopt the judgment verbatim,
without record findings, and without permitting the opposing party to submit his
own proposed judgment. Perlow v. Berg-Perlow, 875 So. 2d 383, 389 (Fla. 2004).
[W]hen a trial court adopts verbatim a partys proposed order, reversal is required
when the findings in that order are inconsistent with an earlier pronouncement of
the court, or when the record establishes that the order does not reflect the courts
independent decision-making. Dukes v. Dukes, 19 So. 3d 338, 339 (Fla. 2d
12

DCA 2009) (quoting M.D. v. Dept of Children & Family Servs., 924 So. 2d 827,
831 (Fla. 2d DCA 2005)); see also Corp. Mgmt. Advisors, Inc. v. Boghos, 756 So.
2d 246, 248 (Fla. 5th DCA 2000) (admonishing trial judges for adopting proposed
orders drafted by litigants verbatim). An order must reflect independent decisionmaking by the judge. Ross v. Botha, 867 So. 2d 567, 57273 (Fla. 4th DCA
2004).
At trial, the court erroneously ruled in favor of the Borrower based on its
determination that Anderson, the Banks witness, failed to establish that the
Borrower had received the pre-acceleration letter and the exact date that the Bank
acquired the note. RvIII: 532::216. Importantly, the trial court only made these
two findings. The court did not make any rulings about the validity of the note and
mortgage or the Banks obligation to repay the mortgage payments that Borrower
had already made. RvIII: 53133.
After the oral ruling, the court requested that Borrowers counsel prepare a
written final judgment, stating: [I]f you want to insert the reasons from your
memorandum, . . . incorporate any of that you want to into the final judgment, to
make yourself a little more bulletproof if there is an appeal taken. RvIII: 532::25
533::16. The final judgment prepared by Borrowers counsel, however, included
language voiding the note and mortgage and ordering the return of the Borrowers
mortgage payments. The trial court never ordered this relief nor was it addressed
13

at trial.

RvIII: 45558.

The trial courts adoption of the Borrowers final

judgment is contrary to law as it includes findings of fact and conclusions of law

not announced on the record by the court. Therefore, the final judgment does not
reflect the courts independent judgment. See RvIII: 45548, 53133; see also
Ross, 867 So. 2d at 572. This Court should overturn the final judgment and
remand this matter back to the trial court.
2.

The Trial Court Erred by Invalidating the Note and

Mortgage and Ordering the Bank to Pay the Borrower the
Mortgage Payments Because the Borrower Did Not Seek
That Relief in the Pleadings.

The trial court erred by granting relief outside of the Borrowers pleadings.
Specifically, the trial court invalidated the note and mortgage and ordered the Bank
to return all prior mortgage payments. The Borrower, however, never requested
this relief in the pleadings. The Bank respectfully requests that the Court overturn
this portion of the final judgment.
[A] trial court lacks jurisdiction to hear and determine matters that were not
the subject of proper pleadings and notice. BAC Home Loans Servicing, Inc. v.
Headley, 130 So. 3d 703, 705 (Fla. 3d DCA 2013), rehg denied (Feb. 13, 2014);
accord Yampol v. Turnberry Isle S. Condo. Assn, Inc., 143 So. 3d 1144, 1146 (Fla.
3d DCA 2014) (The Association did not plead a claim for the permanent removal
of Mr. Yampols improvements . . . and it may not now mend its hold to claim
14

that it is entitled to the permanent removal of those improvements on the unpled

grounds relied upon by the trial court.); Instituto Patriotico Y Docente San
Carlos, Inc. v. Cuban Am. Natl Found., 667 So. 2d 490, 492 (Fla. 3d DCA 1996)
([T]he law in Florida is well-established that a trial court lacks jurisdiction to
entertain and adjudge matters which have not been the subject of proper pleadings
and notice.). As Florida courts have explained:
If a court should render a judgment in a case where it had
jurisdiction of the parties, upon a matter entirely outside
of the issues made, it would, of necessity, be arbitrary
and unjust as being outside the jurisdiction of the subjectmatter of the particular case, and such judgment would
be void and would not withstand a collateral attack, for
upon such matter a presumption would arise that the
parties had had no opportunity to be heard.
Garcia v. Stewart, 906 So. 2d 1117, 1122 (Fla. 4th DCA 2005) (quoting Lovett v.
Lovett, 112 So. 768, 77576 (1927)). Under the current rules of civil procedure,
the pleadings sufficient to invoke a courts jurisdiction include a complaint,
petition, counterclaim, crossclaim, and third-party complaint. Id. at 1123 (citing
Fla. R. Civ. P. 1.100(a)).
In Garcia, the trial court dismissed a defendant condominium association
(the Association) from a foreclosure action after it determined the Associations
lien was superior to the plaintiffs lien. Id. at 1119. On a subsequent motion, the
trial court disbursed surplus funds to the Association. Id. at 1120. The Fourth
15

District voided the award of surplus funds because the Association had not
requested that relief in a pleading. Id. at 1122. The court stated:
Before or after its dismissal from the case, the
Association filed no pleading concerning its claim of
lien. Florida Statute section 718.116(6)(a) contemplates
two possible actions the Association might have
pursuedan action to foreclose a lien for assessments
and an action to recover a money judgment. The
Association had the legal right to collect unpaid
assessments from Garcia; however, the Association did
not file a pleading to commence a proceeding to advance
its right to recovery.
Id. at 112223. The court concluded that the Associations post-judgment motion
to disburse funds, filed after it had been dismissed as a defendant in the lawsuit,
was not a pleading sufficient to invoke the jurisdiction of the court to adjudicate its
right to the funds. Id. at 1123. As a result, the trial court lacked jurisdiction to
adjudicate the Associations claim, and the order disbursing funds was void. Id.
Here, Borrower did not file a pleading seeking a determination that the note
and mortgage were invalid or that she was owed money. RvI: 15375. Instead,
Borrower asserted certain affirmative defenses that the note was void. Without a
counterclaim seeking to void the note and mortgage and a return of the mortgage
payments, however, the court only had jurisdiction to enter a judgment of
dismissal. See Garcia, 906 So. 2d at 112223. As such, the court acted outside of
the scope of its jurisdiction and erred by entering the final judgment invalidating
16

the note and mortgage and ordering the return of all prior mortgage payments. See
Yampol, 143 So. 3d at 1146; Headley, 130 So. 3d at 705; Garcia, 906 So. 2d at
1123. This Court must reverse the final judgment.
3.

The Borrower Did Not Present Sufficient Evidence to

Support the Courts Order Invalidating the Note and
Mortgage and Requiring the Bank to Return the Mortgage
Payments to the Borrower.

Notwithstanding the courts lack of jurisdiction to adjudicate the validity of

the mortgage and note, the Borrower also failed to present sufficient evidence to
support the final judgment. Shockingly, and despite a complete lack of supporting
evidence, the Court ordered that the Bank pay the Borrower an amount allegedly
totaling the mortgage payments she paid to the Bank. Moreover, the Borrower
relied solely on her counsels statements and opinions to support her request to
invalidate the mortgage and note. Without evidence to support these findings, the
final judgment cannot stand.
It is well settled that an attorneys unsworn statements are not evidence, and
a trial court cannot rely upon these unsworn statements as the basis for making
factual determinations. Hewitt, Coleman & Assocs. v. Lymas, 460 So. 2d 467,
468 (Fla. 4th DCA 1984) (quoting Leon Shaffer Golnick Adver., Inc. v. Cedar, 423
So. 2d 1015, 101617 (Fla. 4th DCA 1982)); see also Servedio v. U.S. Bank Natl

17

Assn, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) ([An] attorneys unsworn,
unverified statements do not establish competent evidence.)).
In the final judgment, the trial court found that:
Plaintiffs witness testified that he was aware that
Americas Wholesale Lender was not incorporated in the
year 2005 when the Note and Mortgage were signed, and
that no such corporation was subsequently formed by
either Countrywide Home Loans, or Bank of America, or
any of their related corporate entities or agents.
Plaintiffs witness also confirmed that he was aware that
Americas Wholesale Lender did not ever have a
Lenders license in the State of Florida and did not have
authority to do business in Florida, as a New York
Corporation, under Florida Statute 607.1506.
RvIII: 456 7. Contrary to the findings in the final judgment, it was actually
Borrowers counsel who made these statements, essentially testifying to the status
of the corporate entities. RvIII: 49699, 50105, 51517, 52527. The Banks
witness repeatedly stated that he did not know this information. See, e.g., RvIII:
49697, 50002, 51718. In addition, the Borrower did not present any evidence
supporting the $75,680.72 that the court ordered the Bank to repay. RvIII: 476
534. Although the final judgment states that Defendant has presented to this
Court, a computation of the amount of said payments and the interest due thereon
from the date of each respective payment to September 3, 2014 . . ., this evidence
was never presented at trial. RvIII: 458 13; RvII: 32189; RvIII: 476534.
Moreover, the Bank never had the opportunity to refute any of the Borrowers
18

contentions. Because an attorneys unsworn statements are not evidence and the
findings in the final judgment are not supported by witness testimony, the trial
courts final judgment was in error. See Hewitt, 460 So. 2d at 468. This Court
should reverse.
4.

The Note and Mortgage Are Valid and Enforceable and the
Court Did Not Have the Authority to Void Them.

While the Florida Statutes require loan originators and mortgage lenders to
register in the state, at the time Borrowers loan originated, there were certain
exceptions to registration for the following entities:
(a) A bank, bank holding company, trust company,
savings and loan association, savings bank, credit union,
or insurance company if the insurance company is duly
licensed in this state.
(b) Any person acting in a fiduciary capacity conferred
by authority of any court.
(c) A wholly owned bank holding company subsidiary or
a wholly owned savings and loan association holding
company subsidiary that is approved or certified by the
Department of Housing and Urban Development, the
Veterans Administration, the Government National
Mortgage Association, the Federal National Mortgage
Association, or the Federal Home Loan Mortgage
Corporation.
494.006(1), Fla. Stat. (2005).
The penalty for lending without a license is not invalidation of a loan.
494.0022, Fla. Stat. (Failure to comply with the provisions of 494.001494.0077 does not affect the validity or enforceability of any mortgage loan; and
19

no person acquiring a mortgage loan, as mortgagee or assignee, is required to

ascertain whether or not the provisions of 494.001-494.0077 have been
complied with.). Instead, a lender may receive a reprimand, a fine, or other
disciplinary measure. 494.0041, Fla. Stat. (2005); 494.00255, Fla. Stat. (2014).
Although the Borrower did not present any evidence at trial about the
Banks license, this issue is irrelevant because the relief ordered by the trial court is
not contemplated by the Florida Statutes. The trial court did not have any legal
authority to invalidate the note or mortgage based on the Banks alleged failure to
obtain a license. See 494.0022, Fla. Stat.
As for the transaction of business, while the Florida Statutes prohibit a
foreign corporation from transacting business in the state without a certificate of
authority, the statutes exempt the following lending activities from the definition of
transacting business: creating or acquiring indebtedness, mortgages, and security
interests in real or personal property; securing or collecting debts or enforcing
mortgages and security interests in property securing the debts; and transacting
business in interstate commerce.

See 607.1501(2)(g)-(i), Fla. Stat.

The

consequences of a foreign corporation transacting business in this state without a

certificate of authority include limitations on access to courts. See 607.1502(1)(4), Fla. Stat. As with licensure, the failure of a foreign corporation to obtain a
certificate of authority does not impair the validity of any of its contracts, deeds,
20

mortgages, security interests, or corporate acts or prevent it from defending any

proceeding in this state. 607.1502(5), Fla. Stat. (emphasis added).
Here, because the act of giving a mortgage or creating indebtedness does not
require an entity to qualify to transact business in Florida, the Bank and its
predecessors were not required to obtain a certificate of authority. Nonetheless,
any failure to qualify to transact business in Florida would not invalidate the note
and mortgage. See 607.1502, Fla. Stat. Thus, the trial court erred in finding the
note and mortgage void and ordering the return of all loan payments. This Court
should reverse.
C.

The Trial Court Erred in Awarding Attorneys Fees to Borrower

under Florida Statute Section 57.105, and a Contract It Found Void

The trial court had no legal authority to award attorneys fees to the
Borrower. When the trial court erroneously found the note and mortgage void, it
invalidated those contracts in their entirety. Therefore, Borrower could not rely on
the fee provisions in the note and mortgage to claim entitlement to attorneys fees
under the reciprocal fee provision of Florida law.
Florida Statute section 57.105(7) states:
If a contract contains a provision allowing attorneys fees
to a party when he or she is required to take any action to
enforce the contract, the court may also allow reasonable
attorneys fees to the other party when that party prevails
in any action, whether as plaintiff or defendant, with
respect to the contract.
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When a contract is deemed to have never come into effect, it is not proper for a
court to enforce a prevailing party attorneys fees provision in the contract.
Surgical Partners, LLC v. Choi, 100 So. 3d 1267, 1269 (Fla. 4th DCA 2012);
accord Carnival Leisure Indus. Ltd. v. Arviv, 655 So. 2d 177, 180 (Fla. 3d DCA
1995) (holding that because gambling loan was void and unenforceable, gambler
could not recover attorneys fees under loan provision).
Here, Borrower moved for prevailing party attorneys fees based on Florida
Statute section 57.105 and the fee provisions within the note and mortgage, and the
trial court awarded fees to Borrower as the prevailing party pursuant to its motion.
RvIII: 41112, 442, 45354. However, the trial court invalidated the note and
mortgage, including the fee provisions. RvIII: 45657 9(c)-(e). Thus, the terms
of the note and mortgage could not support an award of attorneys fees and costs.
The trial court erred in finding that the Borrower was entitled to recover attorneys
fees as the prevailing party. This Court must reverse.
II.

THE BANK PRESENTED A PRIMA

FORECLOSURE
AND
BORROWER
COUNTEREVIDENCE
A.

FACIE CASE
PRESENTED

FOR
NO

Standard of Review

The appellate court reviews a trial courts factual determinations at a nonjury trial for competent substantial evidence. McKenzie Check Advance of Fla.,
22

LLC v. Betts, 112 So. 3d 1176, 1180 (Fla. 2013). Whether a party is the proper
party with standing to bring an action is a question of law reviewed de novo. Pub.
Defender, Eleventh Judicial Circuit of Fla. v. State, 115 So. 3d 261, 282 (Fla.
2013); Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So. 3d 14, 16
(Fla. 4th DCA 2012).
B.

The Bank Established an Unrefuted, Prima Facie Case for

Mortgage Foreclosure

The trial court erred in entering final judgment against the Bank because the
Bank proved all of the elements of a foreclosure action raised in the pleadings. To
be entitled to a foreclosure judgment, a plaintiff must show: (1) an agreement; (2) a
default; (3) an acceleration of debt to maturity; and (4) the amount due. Bank of
Am., N.A. v. Delgado, 3D13-910, 40 Fla. L. Weekly D1080 (Fla. 3d DCA May 6,
2015) (citing Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA
2014); Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979)).
Here, the Bank offered evidence at trial of (1) an agreement; (2) a default;
(3) an acceleration of debt to maturity; and (4) the amount due. RvIII: 48292.
The court entered all of the Banks exhibits into evidence without objection.
RvIII: 512:825. Borrower did not present any counterevidence. RvIII: 51331.
Nonetheless, the trial court erred by finding that the Bank did not meet its burden.
RvIII: 532.
23

First, the trial court found that the Bank did not meet a condition precedent
of the mortgage because there is no receipt for the default letter. RvIII: 532:57.
This first reason supporting the trial courts ruling is flawed. A plaintiff may plead
generally that all conditions precedent have been performed. Fla. R. Civ. P.
1.120(c). To refute this contention, the defendant must deny performance
specifically and with particularity. Id. Failure to raise an affirmative defense in a
responsive pleading waives the defense. Fla. R. Civ. P. 1.140(h). Thus, unless
properly contested, a plaintiff need not prove compliance with conditions
precedent to obtain a favorable judgment. See Bank of Am. v. Asbury, 2D14-1965,
40 Fla. L. Weekly D1230 (Fla. 2d DCA May 27, 2015) (finding the trial court
erred in entering judgment against the bank in a foreclosure based on lack of
evidence of compliance with conditions precedent where the borrower failed to
raise the issue in the responsive pleading); see also Godshalk v. Countrywide
Home Loans Servicing, L.P., 81 So. 3d 626, 626 (Fla. 5th DCA 2012); Cooke v.
Ins. Co. of N. Am., 652 So. 2d 1154, 1155 (Fla. 2d DCA 1995).
The Bank pled that it complied with conditions precedent in the complaint,
and Borrower failed to deny the allegation with specificity or to raise the issue as
an affirmative defense.

RvI: 2, 15375.

Thus, compliance with conditions

precedent was not an issue raised by the pleadings, and it was improper for the trial

24

court to rule against the Bank on that basis. See Asbury, 40 Fla. L. Weekly D1230
at 1-2.
The trial court also erroneously ruled that the Bank lacked standing to bring
the foreclosure action. RvIII: 532. Specifically, the court stated, [the Banks
witness] may say [the note] was held, but he cant give me a date when it was
actually acquired by them.

RvIII: 532:1315. As a promissory note is a

negotiable instrument, a plaintiff may establish standing by possession of a note,

indorsed in blank, at the inception of litigation. See Harvey v. Deutsche Bank Natl
Trust Co., 69 So. 3d 300, 303 (Fla. 4th DCA 2011) (citing 671.201, 673.3011,
Fla. Stat.). It is not necessary to establish the exact date note was acquired. Id.
Nonetheless, here, Anderson testified that the note was transferred to Countrywide
Home Loans Servicing, LP, on May 27, 2005, two days after closing. RvIII:
498:1113. Borrower presented no evidence to the contrary. RvIII: 496534.
Therefore, the Bank demonstrated, through undisputed evidence, that it was
entitled to foreclose. The two reasons stated by the trial court for ruling against the
Bank, compliance with conditions precedent and standing, were both in error.
First, the Borrower failed to raise the Banks compliance with conditions
precedent. Therefore, this issue was not properly before the court. Second, the
Bank presented evidence to establish that it had standing to foreclose as the holder
of an indorsed note and the Borrower did not present any contrary evidence.
25

Therefore, the trial court should have entered final judgment for the Bank. This
Court should reverse the final judgment and remand to enter final judgment in the
Banks favor.
CONCLUSION
For the reasons stated, this Court should reverse the final judgment and
remand for entry of final judgment in favor of the Bank.
LIEBLER, GONZALEZ & PORTUONDO
Counsel for Appellant, Bank of America, N.A.
Courthouse Tower - 25th Floor
44 West Flagler Street
Miami, FL 33130
(305) 379-0400
Primary: service@lgplaw.com
By:

26

/s/ Mary J. Walter

MARY J. WALTER
Florida Bar No. 045162
mjw@lgplaw.com

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and
foregoing has been furnished via Electronic Mail on July 27, 2015 to all parties on
the Service List below.
/s/ Mary J. Walter
MARY J. WALTER
Florida Bar No. 045162
mjw@lgplaw.com
Service List:
John G. Pierce, Esq.
Pierce and Associates
800 North Ferncreek Avenue
Orlando, FL 32803
jerry@johnpierce.com
Attorney for Appellee Linda A. Nash

CERTIFICATE OF TYPE SIZE & STYLE

Appellant hereby certifies that the type size and style of the Initial Brief is
Times New Roman 14pt.
/s/ Mary J. Walter
MARY J. WALTER
Florida Bar No. 45162
mjw@lgplaw.com

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