GMAC Mortgage, LLC v. Palenzuela

Third District Court of Appeal
State of Florida
Opinion filed October 26, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1420
Consolidated: 3D14-2914
Lower Tribunal No. 11-22380
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GMAC Mortgage, LLC,
Appellant,
vs.
Pedro Palenzuela, et al.,
Appellees.
Appeals from the Circuit Court for Miami-Dade County, Marc Schumacher,
Judge.
Greenberg Traurig, P.A., and Kimberly S. Mello and Laura J. Bassini
(Tampa), for appellant.
Roniel Rodriguez IV, for appellee, L & L Super Investment, Inc.
Before WELLS, SHEPHERD and LOGUE, JJ.
SHEPHERD, J.
The appellant, GMAC Mortgage, LLC, appeals an order releasing escrowed
funds in the sum of $393,609.41 to a redeeming party in a mortgage foreclosure
action based upon evidence and testimony given at an evidentiary hearing.
According to GMAC, the funds represented unpaid interest, insurance premiums,
and other escrowed items. The record, however, contains no transcript of the
hearing, and GMAC’s post-hearing efforts to create a record by affidavits of
counsel and the GMAC witness who testified are too little too late. See Applegate
v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979) (affirming because the
record brought forward by the appellant was inadequate to demonstrate reversible
error). Nor did GMAC attempt to avail itself of the procedure contained in Florida
Rule of Appellate Procedure 9.200(b)(4), which governs the preparation of a
statement of proceedings when no transcript of the proceeding is available.
GMAC points us to its mortgage documents and section 45.0315 of the
Florida Statute (2014), which require that a redeeming party must “tender the
performance due under the security agreement” where, as here, “no judgment,
order or decree of foreclosure has been entered.” However, for reasons not
apparent in the record, the trial court’s order granting the redemption expressly
carved out the escrowed funds for separate treatment. The order reads as follows:
ORDER GRANTING
L&L SUPER INVESTMENT, INC.
MOTION TO REDEEM
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THIS CAUSE having come on to be heard on 4/29/14 on L&L
Super Investment, Inc. Motion to Redeem First Mortgage and the
Court having heard argument of counsel, and being otherwise advised
in the premises, it is hereupon
ORDERED AND ADJUDGED that said Motion be, and the same is
hereby
The motion is granted. L&L Super Investment, Inc., pursuant to Sec.
45.0315, Fl Stat., shall tender to the plaintiff, on or before May 22,
2014, the sum of $1,372,882.39, which upon tender shall constitute
redemption of the mortgage recorded in Miami-Dade County, Florida,
Official Records Book 21894 at Pages 3515-3532, recorded
12/10/2003, on property known as 6131 S.W. 128 St, Miami, FL
33156, legally described as Lot 14, Block 13 of Town and Ranch
Estates, according to plat thereof as recorded in Plat Book 50 at page
46-Parcel ID 20-5013-003-1270. Upon redemption this Order shall
constitute a satisfaction of said mortgage, extinguishing the mortgage
of record. The additional sum of $393,609,41 shall be held by the
closing agent in escrow pending disposition by the Court, which shall
take place on May 20, 2014 at 9:30 a.m. in Room 626. The
redemption payment shall be made by wire to Pendergast & Morgan,
P.A. pursuant to its wire instructions, to its account at Suntrust Bank.
There was no court reporter at the hearing, and GMAC did not seek
reconsideration, modification, clarification or review of the order. L&L timely
tendered the $1,372,882.39 as required, and the hearing resumed on May 20, 2014,
as scheduled. At the close of this hearing, the trial court entered a second order.
That order reads as follows:
ORDER RELEASING MONIES HELD BY ESCROW AGENT
THIS CAUSE having come on to be heard on 5/20/14 on [L&L
Super Investments, Inc.’s] Motion to Redeem Mortgage and [for]
release of monies held by escrow agent and the Court having heard
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argument of counsel, and being otherwise advised in the premises, it
is hereupon based on evidence and testimony given
ORDERED AND ADJUDGED that said Motion be, and the same is
hereby
Granted. The escrow agent is hereby directed to release all monies
held in escrow pursuant to this Court’s Order dated 4/29/14 to L&L
Super Investment, Inc. forthwith.
(Emphasis added.) Again, there was no court reporter present at the hearing.
No doubt discomposed, GMAC sought to redeem itself from its failure to
preserve a record for review, not by seeking to recreate it pursuant to Rule
9.200(b)(4), but rather through a motion for rehearing and later filed affidavits of
its counsel of record and the witness who testified at the hearing. The gravamen of
the testimony by affidavit is that the trial judge erred in not accepting the GMAC
transaction history which would have conclusively proved that GMAC was entitled
to the escrow. The trial court denied the motion.
GMAC has hung itself on its own petard in this case. It seeks reversal on the
basis of a non-existent, proper record. What it really wants is a second chance.
However, just as in the rules of golf, there are no mulligans in contested legal
cases. With rare exceptions, you either prove your case by the close of the
evidence at an evidentiary hearing or trial, or you don’t. Wolkoff v. Am. Home
Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2nd DCA 2014) (“Appellate courts do
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not generally provide parties an opportunity to retry their case upon a failure of
proof.”).
This case may or may not have had a failure of proof. However, it does
suffer from the failure of a record, and that is the significant datum for decision
purposes. As we have often said, “[w]here there is no record of the testimony of
witnesses or of evidentiary rulings, and where a statement of the record has not
been prepared pursuant to Florida Rule of Appellate Procedure 9.200(a)(3) or
(b)[4], a judgment which is not fundamentally erroneous on its face must be
affirmed.” Zarate v. Deutsche Bank Nat. Trust Co., 81 So. 3d 556, 558 (Fla. 3d
DCA 2012). There is nothing fundamentally erroneous on the face of the order on
appeal in this case.
Affirmed.
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