Client came to us with a “standard” foreclosure action. Original Plaintiff, BAC Home Loans Servicing filed their initial complaint which included only one court for foreclosure. However, several months later, the Plaintiff sought leave to substitute the party Plaintiff to Bank of America and amend the complaint to include a reformation of mortgage count. We specifically denied the reformation relief in our Answer and Affirmative Defenses, to which Plaintiff did not file a response.
The case proceeded to trial and almost no objections were made by the Defendant. Without much fight, all the proffered exhibits were entered into evidence. Strategically, this worked in the client’s favor, as this threw opposing counsel off and the Plaintiff failed to put into evidence anything regarding the reformation. After resting, the Court granted the Defendant’s Motion for Involuntary Dismissal based on a failure to reform the legal description in the Mortgage. More specifically, the Trial Court found that the Plaintiff’s witness admitted that the legal description was incorrect and refused to reform or grant a foreclosure on the “wrong” property.
Plaintiff attempted a motion for rehearing, which was denied. Finally, Plaintiff appealed to the 4th DCA. The crux of their argument consisted of a prior agreed order amending their complaint which included the language of correct legal description. While this agreed order was never raised at trial, it still presented a unique issue on appeal – could the appellate court correct the reformation issue because the Defendant technically “agreed” to what the correct legal description is. Thankfully, we were able to distinguish this scenario and show the Appellate Court that raising this issue for the first time on appeal and not at trial was improper while also persuading the Appellate Court to agree that the agreed order does not change Plaintiff’s burden to prove the reformation count.
While we can probably expect another foreclosure attempt down the road, for the time being the client defeated the Plaintiff at trial, successfully defended their appeal and presently is not in foreclosure.