“ENTIRE LOAN HISTORY IS NOT REQUIRED IN ORDER TO FORECLOSE ON A MORTGAGE AND HOW MUCH OF THE PAYMENT HISTORY IS REQUIRED TO BE ENTERED INTO EVIDENCE GENERALLY WILL DEPEND ON THE DAMAGES SOUGHT.”
On June 5, 2019, the Fourth District Court of Appeal in Deutsche Bank Trust Company v. JB Investment Realty, LLC, Case No. 4D18-3240, 44 Fla. L. Weekly D1426a, (Fla. 4th DCA June 5, 2019) held that the trial court erred in granting an involuntary dismissal requiring the entire payment history from the beginning to be in evidence before the bank could proceed with the foreclosure action and reversed and remanded for a new trial.
The Bank brought a mortgage foreclosure action, alleging that the loan originated in 2005, and that a default occurred on July 1, 2012. At trial the Bank presented testimony from a default case analyst with the current servicer who also worked for a prior servicer. During the witnesses’ testimony the loan payment history from February 2008 to August 2018 was introduced into evidence over objection.
Significant to the issue in the case, the payment history did not include the period from the loan’s inception in 2005 to February 2008. Of importance, was that the Bank was not seeking any interest or damages from prior to 2012. Borrowers moved for involuntary dismissal based on failure to prove damages due to the lack of any payment history between 2005 and February 2008. In which, the trial court stated that the Fourth District requires the “entire history of the loan . . . from the beginning,” and as a result, the trial court granted the motion for involuntary dismissal based on the fact that the bank did not have the loan's complete financial history.”
The Fourth District Court of Appeal held that as the Bank sought damages only from 2012 onward, that the trial court erred as each subsequent default creates a distinct cause of action subject to a different calculation of damages. Thus how much of the payment history is required to be entered into evidence generally will depend on the damages sought.
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