BOMBSHELL: EXPLOSIVE NEW FORECLOSURE DEFENSE OPINION!

collectively Kraz) in this commercial foreclosure case. Of the twelve issues raised by

BB&T, only one has merit, and we reverse the final

judgment solely to the extent that it

awarded a credit against Kraz’s loan principal for amounts BB&T may have received

during the pendency of the fore closure proceedings pursuant to a Commercial Shared

Loss Agreement with the Federal Deposit Insurance Corporation (FDIc). In all other

respects, we affirm.

This case comes to us with a lengthy record. However, for purposes of

this opinion, the relevant fa

cts are fairly straightforward. BB&T purchased Kraz’s

$5,182,128 commercial construction loan, along

with numerous other assets, from the

FDIC after Colonial Bank, which originated the loan, was closed by the FDIC. The

purchase agreement between BB&T and the

FDIC included a provision called a

Commercial Shared Loss Agreement, which se

t forth the means by which BB&T and

the FDIC would share in any losses

that arose from the Colonial loans that BB&T

purchased. Under the Commercial Shared Loss Agreement, BB&T was required to

submit a quarterly report listing the losses it

had sustained during t

hat quarter due to

charge-offs taken on the entire pool of Co

lonial loans, and the Commercial Shared Loss

Agreement required the FDIC to pay BB&T

a stated percentage of those losses. BB&T

was also required to submit a second report detailing any “recoveries,” which were

defined as collections received during the quarter on the entire pool of shared loss loans that had been previously charged

off. If the amount of net recoveries was positive,

The Commercial Shared Loss Agreement, which is a complex twenty-

seven-page document, applies to residential

and commercial loans, real estate, and

certain securities purchased by BB&T from

the FDIC. For purposes of this opinion,

however, we focus solely on the provisions

relating to BB&T’s purchase of residential

and commercial loans from the FDIC.

BB&T was required to pay a stated percent

age of those recoveries to the FDIC.

Thus, if BB&T charged off a loan in one quarter, it

could include that loan in the charge-off

pool for the quarter and it would be paid a porti

on of that loss by the FDIC. However, if

BB&T made a recovery on that charged-off

loan in a subsequent quarter, BB&T would

essentially have to reimburse the FDIC fo

r the earlier payment by including that

recovery on its quarterly report

and paying a portion of the re

covery to the FDIC.

Shortly after BB&T purchased Colonial’s assets, it declared the Kraz loan

to be in default and it filed a foreclosure action against Kraz. During the foreclosure

proceedings, a court-appointed receiver colle

cted tenant rents, paid certain expenses,

and managed the property in consultation with

BB&T. The receiver transmitted the net

collected rents to BB&T after the receiv

er himself was paid, and presumably BB&T

applied these funds to reduce Kraz’s indebtedness.

At the trial on the foreclosure comp

laint, BB&T’s corporate representative,

Oscar Bruni, admitted that

BB&T “may have” received payment under the Commercial

Shared Loss Agreement as a result of the

default declared on the

Kraz loan. Bruni

testified that he would have to make a

telephone call to BB&T’s accounting department

to determine for sure whether any su

ch payment had been received and the exact

amount of the payment; however, no one asked Br

uni to make this call. Kraz’s banking

expert, James Howard, testified that BB&T’s

shared loss payment on the loan could be

“as much as $1.8 million.” However, neither

Bruni nor any other wit

ness testified as to

Because the Commercial Shared Loss Agreement allowed BB&T to

deduct the expenses incurred in obtaining quarterly recoveries from the amount of gross recoveries received in the same

quarter, it was possible that

net recoveries in any one

quarterly period could be negative.

Whether, in fact, BB&T had received such a payment and, if so, what the exact amount

of the payment was.

At the conclusion of the foreclosure

trial, the trial court found that Kraz had

not been in default under the terms of t

he loan when BB&T declared the default.

Having reached this conclusion, the trial

court denied BB&T’s request to foreclose on

the property, and it set about cr

eating an equitable remedy that

would return the parties

to the financial positions they would

have been in had the im

proper default not been

declared. As part of that remedy, the tr

ial court reinstated t

he loan, ordered BB&T to

write off the default interest and late fees

it had charged, and order

ed an accounting of

the funds turned over to BB&T by the receiv

er during the course of the foreclosure

proceedings. In addition, the c

ourt ordered BB&T to credit the pr

incipal of the Kraz loan

with the shared loss payment that BB&T had a

llegedly received on this loan pursuant to

the Commercial Shared Loss Ag

reement. Specifically, t

he trial court ordered

that [BB&T] shall, within thirty

(30) days of the entry of this

Final Judgment, credit the principal of the Note with all

payments received by [BB&T] from

the FDIC concerning this

loan per Mr. Bruni’s and Mr. Howa

rd’s testimony. . . . No

payments shall be due from [K

raz] until [BB&T] credits all

such payments it has received

against the principal. . . .

The stated purpose of this credit was to

prevent BB&T from “double-dipping” by

receiving payments on the loan both

from the FDIC and Kraz.

In this appeal, BB&T argues, among other things,

that the credit ordered

for the alleged shared loss payment constitut

ed an abuse of discretion. On this single

In addition to its initial brief and reply brief, BB&T submitted a fourteen-

page “Motion to Certify Question” approximately one week before oral argument. This

motion, which included two exhibits as

additional evidence, included numerous

arguments raised for the first time concerni

ng the impropriety of the credit for the

issue, we agree because Kraz presented no ev

idence to establish that BB&T actually

received any payment under the Commerc

ial Shared Loss Agreement based on a

charge-off of the Kraz loan.

Instead, the only testimony wa

s that it was possible that

BB&T may have

received a payment of as much as

$1.8 million from the FDIC but that

further evidence would be needed to be sure. Th

is testimony is legally insufficient to

support a finding that BB&T had, in fact, rece

ived a payment of $1.8 million as a result

of charge-offs on the Kr

az loan. See, e.g.

, Taylor v. Lee

, 884 So. 2d 222, 224 (Fla. 2d

DCA 2004) (” ‘[T]here must

be some reasonable basis in the evidence to support the

amount [of damages] awarded.’ ” (quoting

Camper Corral, Inc. v. Perantoni

, 801 So. 2d

990, 991 (Fla. 2d DCA 2001)) (alteration

in original)); Schimpf v. Reger

, 691 So. 2d 579,

580 (Fla. 2d DCA 1997) (“Damages cannot be

based upon speculatio

n and guesswork,

. . . but must have some reasonable basis in fa

ct.”). Thus, in the absence of any legally

sufficient evidence to support this credit agains

t the principal of Kraz’s loan, we must

reverse this portion of the final

judgment and remand for correction.

While we base our reversal on the

lack of evidence to support this credit,

we also note that even if Kraz had pres

ented additional evidence concerning BB&T’s

receipt of funds from the FDIC, the terms

of the Commercial Shared Loss Agreement

 alleged shared loss payment. Because thes

e arguments were not raised in BB&T’s

initial brief, they ar

e not properly before this court. Cf.

Polyglycoat Corp. v. Hirsch

Distribs., Inc.

, 442 So. 2d 958, 960 (Fla. 4th DCA 1983)

(“When points, positions, facts

and supporting authorities are omitted from the br

ief, a court is entitled to believe that

such are waived, abandoned, or deemed by c

ounsel to be unworthy.”). Further, the

exhibits attached to this motion as additional ev

idence are not properly before this court.

See, e.g.

, Supinski v. Omni

Healthcare, P.A.

, 853 So. 2d 526, 532 n.2 (Fla. 5th DCA

2003) (“It is elemental that appellate courts

will not consider ev

idence that was not

presented to the trial court fo

r its consideration in making

its decisions.”); Hillsborough

Cnty. Bd. of Cnty. Comm’rs v. Pub. Employees Relations Comm’n

, 424 So. 2d 132, 134

(Fla. 1st DCA 1982) (same). Thus, while

we have read these materials, they have

played no part in our

decision.would not support the trial court’s decision

to award a credit based on that payment

because the Commercial Shared Loss Agreem

ent specifically requires BB&T to

reimburse the FDIC if it makes any reco

very on the note from Kraz. As discussed

above, the Commercial Shared Loss Agreement

requires BB&T to reimburse the FDIC

for recoveries it makes on loans that were c

harged off in prior quarters. Thus, if Kraz

makes payments on the reinstated loan, thos

e payments would constitute “recoveries”

under the Commercial Shared Loss Agreement, and BB&T would be required to repay

the FDIC based on those recoveries. Hence,

even assuming that BB&T in fact received

$1.8 million from the FDIC for charge-offs

on the Kraz loan, BB&T will not receive a

windfall when Kraz makes payments on the

loan because BB&T will be required to

reimburse the FDIC to the extent of thos

e payments. The trial court’s rationale for

ordering this credit””to prevent BB&T from

“double-dipping”””is erroneous because the

Commercial Shared Loss Agreement prevents such

double-dipping by its own terms.

Moreover, we agree with BB&T that if

a borrower could have the principal

of his or her loan reduced due to a shared lo

ss payment received from the FDIC during

the course of foreclosure proceedings,

then FDIC-regulated sales of closed banks’

assets would come to a halt.

If the possibility existed that a

trial court, using its legal or

equitable powers, could grant the relief given

Kraz in this case, no bank purchasing a

closed bank’s loans would take seriously its re

sponsibility to attempt to collect on those

loans. Ironically, the relief afforded to Kraz

by the trial court actually results in double-

dipping in reverse””with the purchasing bank

being compelled to both forgive the debtor

for that portion of the debt paid by the FDIC

and also repay the FDIC for the forgiven

amount. Such a result turns the

concept of equity on its head.