Plaintiff in Foreclosure Action Snared by Evidence of Damages, Attorney's Fees & Costs
In Colson v. State Farm Bank, F.S.B.
, Case No. 2D13-5526, Florida's Second District Court of Appeals just reversed a final judgment of foreclosure entered in favor of the plaintiff, finding that a "total lack of evidence as to damages" required reversal and remand for further proceedings. In February 2009, State Farm as the plaintiff initiated a mortgage foreclosure action against the Colsons. Through its sole witness, an employee of its servicer, State Farm introduced the following into evidence at the November 2013 trial: a power of attorney between State Farm and the servicer, a notice of default letter addressed to the Colsons, a loan payment history, and the original note and mortgage (filed on record with the clerk rather than admitted into evidence). On review, the appellate court described the loan payment history as a twenty-six page document consisting of a combination of screen-shots and spreadsheets that displayed coded data entries with no final totals. The court also found that the testimony regarding the loan payment history did not explain the documents, the figures within them, or otherwise state the amount of the indebtedness. During the direct examination, State Farm asked its witness only whether the figures in the proposed final judgment comported with the numbers in the servicer's business records. In challenging the final judgment of foreclosure, the Colsons argued that the amount of indebtedness could not be extracted and calculated from the payment history, which was the only evidence offered regarding damages. The Colsons also challenged the lack of evidence supporting the trial court's award of attorney's fees and costs. While State Farm filed affidavits of attorney's fees and costs prior to the trial, these affidavits were not admitted into evidence at trial. The appellate court agreed that evidence of the indebtedness, attorneys' fees, and costs was insufficient, noting that a party may challenge on appeal the sufficiency of the evidence offered at a non-jury trial, even if the appellant made no objection to the sufficiency of the evidence at trial. The court affirmed in part and reversed in part, finding specifically that State Farm established standing as the holder of the note and mortgage and that the Colsons had defaulted under the note, but also finding a total lack of evidence of the damages offered at trial. The court also remanded for further proceedings consistent with its opinion, explaining that it would be inappropriate to remand with direction to dismiss the action where, as here, the Colsons had not moved for dismissal or directed verdict at the close of evidence at trial. To read the opinion, click here