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Foreclosure Defense Florida

Foreclosure REVERSED! No Evidentiary Basis For Foreclosure

My favorite part of this oral argument is how quick the homeowner attorney is to admit his (few) weak points…Judge Crenshaw continues to ask him very tough questions and tries to get him to concede a point…several good exchanges…he quickly admits, then gets right into responding directly to the panel.  This case really is one of the finest examples of perfect exchanges and direct responsiveness between judges and the attorney.  Watch how the interruptions and exchanges are so politely and deftly handled on both sides of the bench.  And wowza, just watch  how precise  Judge Silberman is when he gets into the bank attorney around 15:00. And then ouch…listen to the



BAC Home Loans Servicing, LP (the Bank), filed this action in May 2010.
The complaint alleged that Boyette was in default and owed $115,697.24 plus interest
and late charges. The complaint also sought reimbursement of costs for property
inspections and attorney’s fees. One item properly introduced into evidence was a
payment history delineating the principal amount, $115,697.24, hazard insurance
premiums, late charges, and tax payments. The final judgment also includes awards for
the other items sought in the complaint.
Values awarded in a foreclosure judgment must be based on competent,
substantial evidence. Wagner v. Bank of Am., N.A., 143 So. 3d 447, 448 (Fla. 2d DCA
2014). Based on the testimony and the payment history in evidence, we conclude there
is competent, substantial evidence supporting the principal, hazard insurance, late
charges, and taxes. However, the Bank was also awarded interest, costs for property
inspections, and attorney’s fees. These latter values fail for lack of competent,
substantial evidence. See id. The final judgment states that interest accrued in the
amount of $23,741.25. But there are no records or testimony reflecting how that
amount accrued, and the only document regarding interest, the adjustable rate rider,
does not provide enough information to establish the interest that accrued. Thus this
portion of the judgment must be reversed. See Salauddin v. Bank of Am., N.A., 150 So.
3d 1189, 1190-91 (Fla. 4th DCA 2014).1 Too, the $945 for property inspections is not
1Because we reverse for an evidentiary hearing or trial to establish the
remaining amounts due and owing, the court may allow evidence to be adduced on this
established by testimony or other evidence in our record. See Wagner, 143 So. 3d at
448. Finally, the attorney’s fees of $1200 are not substantiated. Rather, the final
judgment requires that we infer a flat fee because the breakdown of the fee award
states that it was for “0 hours at $0.00 per hour.” But the record does not reflect any
agreement to a flat attorney fee; thus, this must be supported by other competent,
substantial evidence. See id. Because the attorney’s fee is not so supported, we must
reverse this portion of the judgment as well.

Default is established in this case, and the amount of principal, hazard
insurance premiums, late charges, and taxes are supported by competent, substantial
evidence. But because the other costs, namely interest, property inspection fees, and
the attorney fees, are not, we reverse and remand the judgment for further proceedings
to properly establish the amounts allegedly due and owing. See Sas v. Fed. Nat’l
Mortg. Ass’n, 112 So. 3d 778, 779 (Fla. 2d DCA 2013).

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