Brian M. Beauchamp v. The Bank of New York Trust Company , 2014 Fla. App. LEXIS 16801 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
BRIAN M. BEAUCHAMP,
Appellant,
v.
THE BANK OF NEW YORK, TRUST COMPANY, N.A., AS SUCCESSOR
TO JP MORGAN CHASE BANK, N.A. AS TRUSTEE,
Appellee.
No. 4D13-3841
[October 15, 2014]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Kathryn Nelson, Judge, and George A. Shahood, Senior
Judge; L.T. Case No. 562007CA002162A.
Robert P. Summers of McCarthy, Summers, Bobko, Wood, Norman,
Bass & Melby, P.A., Stuart, for appellant.
Marc James Ayers of Bradley, Arant, Boult, Cummings, LLP, Alabama,
for appellee.
CONNER, J.
Brian Beauchamp appeals the trial court’s final judgment of foreclosure
in favor of the Bank of New York (“the Bank”). Although Beauchamp lodges
several challenges to the final judgment, we find merit in only one of his
arguments. Beauchamp argues that the trial court erred in admitting
hearsay testimony as to the amount of debt owed under the note in
connection with the contents of a business record without having the
business record admitted into evidence. Without inadmissible hearsay,
Beauchamp asserts that there was no evidence to establish the amount
due on the note. We agree and reverse for further proceedings.
The mortgage was executed by Beauchamp and Lois Taylor in 2002.
The note was executed only by Lois Taylor, who subsequently passed
away. In 2007, the Bank initiated a foreclosure action against Beauchamp
and the matter proceeded to a non-jury trial in 2012.
At the conclusion of the Bank’s case, Beauchamp moved for an
involuntary dismissal, arguing that there was no evidence as to the
amount of debt owed on the note. The trial court permitted the Bank to
reopen its case in order to provide such evidence. The Bank presented
testimony from a representative of GMAC Mortgage, the servicer of the
loan. The witness testified about the amount due under the note over the
objection of Beauchamp’s counsel, who argued that the testimony was
inadmissible hearsay because the testimony concerned the contents of
business records which had not been introduced into evidence. The trial
court overruled the objection and, at the conclusion of the case, entered
final judgment of foreclosure in favor of the Bank.
On rehearing, the Bank conceded that the trial court erred in admitting
hearsay testimony as to the amount of damages in connection with the
contents of a business record without having the business record admitted
into evidence. However, the parties disagreed as to what the court should
do about the error. Beauchamp argued that the case should be dismissed,
while the Bank asserted that the court could remand for further
proceedings to properly establish the amount due under the note.
Alternatively, the Bank maintained that because Beauchamp had not
signed the note and was therefore not liable for any money damages, the
appropriate course of action would be to allow the foreclosure to proceed
without further evidentiary proceedings, because the proceeding was in
rem as to Beauchamp. Apparently agreeing with the alternative argument,
the trial court stated that it was “sitting in the court of equity” and denied
Beauchamp’s motion for involuntary dismissal.
On appeal, the Bank argues that even if the trial court erred in
permitting hearsay testimony regarding the amount due under the note,
such error was harmless and is not grounds for a new trial unless a
substantial right of a party was adversely affected. See Bulkmatic Transp.
Co. v. Taylor, 860 So. 2d 436, 447-48 (Fla. 1st DCA 2003); § 90.104(1),
Fla. Stat. (2013). The Bank reasons that because Beauchamp did not sign
the note, he is not liable for paying any money judgment, and as such, the
error did not adversely affect Beauchamp’s substantial rights.
We agree with Beauchamp that the erroneous admission of the hearsay
testimony as to damages was not made harmless by virtue of Beauchamp’s
non-liability for payment of the note. While Beauchamp would not be
responsible for any deficiency that remained after the sale of the property,
he did sign the mortgage, and the final judgment would foreclose his
ownership rights by a judicial sale. As the mortgagor, Beauchamp has a
right of redemption wherein he may prevent divestiture of his legal title
upon payment of the amount of the debt specified in the judgment. CCC
2
Props., Inc. v. Kane, 582 So. 2d 159, 161 (Fla. 4th DCA 1991); § 45.0315,
Fla. Stat. (2013).1 Therefore, even though Beauchamp is not personally
liable for the debt, the amount of the debt owed is important as it relates
to Beauchamp’s right of redemption, specifically as to the amount due
under the judgment in order to exercise his right to stop the foreclosure
sale.
Thus, the Bank’s failure to provide admissible evidence that would
establish the proper amount due on the note was not harmless error.
Rather, proof of the amount of debt owed was required to allow the
foreclosure, and Beauchamp’s ownership rights and right of redemption
are substantive rights that were adversely affected by the error.
We affirm the judgment of foreclosure, except as to the amount due
under the note, and remand the case for further proceedings to determine
that amount. See Sas v. Fed. Nat’l. Mortg. Ass’n, 112 So. 3d 778 (Fla. 2d
DCA 2013) (affirming final judgment, but reversing and remanding for
further proceedings to determine the amount of the debt owed where
testimony from Fannie Mae’s representative regarding the amount of the
debt was inadmissible hearsay because the representative testified about
business records that were not submitted into evidence).2
1 Section 45.0315 provides that:
At any time before the later of the filing of a certificate of sale by the
clerk of the court or the time specified in the judgment, order, or
decree of foreclosure, the mortgagor or the holder of any subordinate
interest may cure the mortgagor’s indebtedness and prevent a
foreclosure sale by paying the amount of moneys specified in the
judgment, order, or decree of foreclosure, or if no judgment, order,
or decree of foreclosure has been rendered, by tendering the
performance due under the security agreement, including any
amounts due because of the exercise of a right to accelerate, plus
the reasonable expenses of proceeding to foreclosure incurred to the
time of tender, including reasonable attorney’s fees of the creditor.
Otherwise, there is no right of redemption.
§ 45.0315, Fla. Stat. (2013) (emphasis added).
2 We recognize that a different conclusion was reached in Wolkoff v. American
Home Mortgage Servicing, Inc., No. 2D12-6460, 2014 WL 2378662 (May 30,
2014), where the Second District reversed the trial court’s final judgment of
foreclosure and dismissed the case because the plaintiff mortgage company
“failed to satisfy its burden to prove the amount of debt owed.” Id. at *3. In that
case, a representative of the plaintiff mortgage company “merely confirmed that
the totals given to him on a proposed final judgment ‘seemed accurate’; he never
3
Affirmed in part; reversed in part; remanded for further proceedings
consistent with this opinion.
LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
openly recited the total amount of indebtedness, nor did [plaintiff’s counsel] ask
him to.” Id. at *1. The court in Wolkoff distinguished Sas on the ground that in
Sas, the plaintiff “submitted evidence of the amount of indebtedness through
witness testimony,” although that testimony was inadmissible hearsay, unlike
the plaintiff in Wolkoff, who failed to offer any evidence at all—whether admissible
or not.
The facts of the instant case are more similar to Sas than Wolkoff because
here, like the plaintiff in Sas, the Bank established the amount of indebtedness
through witness testimony, even though that testimony concededly was
inadmissible hearsay. This is unlike Wolkoff, where the plaintiff failed to produce
any evidence, admissible or not, supporting the amount of indebtedness.
4