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Circuit Court Exceeds Authority by Rewriting Terms of Mortgage

The Florida Fourth District Court of Appeals (DCA) recently reversed (in part) a final judgment entered in favor of the mortgagors (the Saunders) and against US Bank wherein the circuit court denied foreclosure and essentially rewrote the terms of the note and mortgage. U.S. Bank Nat’l Ass’n v. Saunders, No. 4D22-1658, 2023 WL 5598399 (Fla. 4th DCA Aug. 30, 2023).

In May 2022, Judge Janet C. Croom (Indian River County) denied foreclosure to US Bank for reasons outside the scope of this article. Instead of simply dismissing the foreclosure action, Judge Croom formulated a “resolution” which failed to account for almost 12 years of missed payments, eliminated $6,700 in deferred principle, and failed to recognize and enforce several essential terms of the note, mortgage and (mortgage) modification agreement. The pertinent provision of the Judgment read:

“Based on the foregoing findings of fact and the procedural history of the foreclosure proceedings involving Defendants’ Mortgage … the Court hereby Orders that the total Mortgage balance, to include any and all fees and costs is $111,654.63 as of May 2, 2022. Said sum shall be paid back by Defendants to Plaintiff pursuant to the terms and conditions of the Loan Modification Agreement between the parties dated June 8, 2010. Repayment shall commence June 1, 2022[,] with an initial principal, interest, taxes, and insurance monthly payment of $634.44.”

US Bank appealed the Judgment, and Diaz Anselmo & Associates P.A., represented appellant. US Bank argued that the trial court granted relief beyond that requested by the Saunders in their pleadings, and that the court exceeded its equitable authority by rewriting the parties’ agreement. The Fourth DCA agreed with US Bank on both points.

Firstly, the DCA explained that the Saunders did not request amendment of the loan documents in their pleadings, so granting that relief was outside the scope of the pleadings and therefore improper. Secondly, the DCA noted that the court “negated essential contractual terms favorable to the Bank” which the court lacked the authority, equitable or otherwise, to do. The terms of the Judgment effectively rewrote the parties’ agreement.

The Court, quoting the Second DCA, explained: “[I]n determining whether to grant the equitable relief of foreclosure, the trial court is not at liberty to modify terms of a note and mortgage that are unambiguous and undisputed …”

The Fourth DCA concluded Judge Croom could and did rely on his equitable powers to deny foreclosure; however, the Court explained “equitable considerations cannot justify rewriting the terms of the parties’ agreements.” The DCA remanded the matter to the lower tribunal to amend its judgment to “simply deny foreclosure.”

Note that the borrowers in the case of U.S. Bank Nat’l Ass’n v. Saunders defaulted by failing to make their May 2010 payment. Although this information in not included in the written opinion, since Diaz Anselmo and Associates handled the foreclosure action and appeal, additional details about the case are known which may be outside the scope of the written opinion.

About Author: Adam A. Diaz

Adam Diaz is the Litigation Partner at Diaz Anselmo Lindberg, P.A. in Ft. Lauderdale, FL. He is AV Rated by Martindale-Hubbell which is the highest peer rating for Ethical Standards and Legal Ability. Adam has concentrated his practice in the areas of mortgage foreclosure and real estate, bankruptcy, consumer protection actions and commercial litigation. He is admitted in all Federal Courts in Florida as well as the United States Court of Appeals for the Eleventh Circuit. Adam Diaz is the Litigation Partner at Diaz Anselmo Lindberg, P.A. in Ft. Lauderdale, FL. He is AV Rated by Martindale-Hubbell which is the highest peer rating for Ethical Standards and Legal Ability. Adam has concentrated his practice in the areas of mortgage foreclosure and real estate, bankruptcy, consumer protection actions and commercial litigation. He is admitted in all Federal Courts in Florida as well as the United States Court of Appeals for the Eleventh Circuit.
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