         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                            NOT FINAL UNTIL TIME EXPIRES TO
                                            FILE MOTION FOR REHEARING AND
                                            DISPOSITION THEREOF IF FILED


BRIAN FOGARTY and
CHRISTINE FOGARTY,

             Appellants/Cross-Appellees,

 v.                                                    Case No. 5D16-3193

NATIONSTAR MORTGAGE, LLC,
and SEAGROVE NEIGHBORHOOD
ASSOCIATION, INC.,

             Appellees/Cross-Appellants.

______________________________________/

Opinion filed August 4, 2017

Appeal from the Circuit Court
for St. Johns County,
A.W. Nichols, III, Senior Judge.

D. Brad Hughes and Kayla A. Haines, of
Jimerson & Cobb, P.A., Jacksonville, for
Appellants/Cross-Appellees.

Nancy M. Wallace, of Akerman LLP,
Tallahassee, William P. Heller,of Akerman
LLP, Fort Lauderdale, and Eric M. Levine,
of Akerman LLP, West Palm Beach, for
Appellee/Cross-Appellant, Nationstar
Mortgage, LLC.

Michael J. McCabe and Michelle P.
Haines, of McCabe Law Group, P.A.,
Ponte Vedra Beach, for Appellee/Cross-
Appellant, Seagrove Neighborhood
Association, Inc.
WALLIS, J.

       Brian and Christine Fogarty ("Borrowers") appeal a final judgment of foreclosure

in favor of Nationstar Mortgage, LLC ("Nationstar"), arguing the trial court improperly

denied their motion for involuntary dismissal. In its cross-appeal, Nationstar argues the

trial court erred by omitting interest and escrow from the judgment and by dismissing

appellee/cross-appellant, Seagrove Neighborhood Association, Inc. ("Seagrove"), as a

superior lienholder. We affirm the trial court's denial of Borrowers' motion for involuntary

dismissal without discussion. However, because the trial court improperly excluded

interest and escrow amounts, we reverse and remand for modification of the final

judgment. Additionally, we reverse the trial court's dismissal and remand for Seagrove's

reinstatement as a party to the foreclosure action.

                                           FACTS

       In 2007, Borrowers executed a note and mortgage for $352,000 in favor of

SunTrust Mortgage, Inc. ("SunTrust"). In December 2010, Nationstar sent Borrowers a

welcome letter notifying them that it had replaced SunTrust as the servicer of their

mortgage. In April 2013, Nationstar sent Borrowers a default letter, alleging a default date

of November 11, 2009, and requiring the immediate payment of $124,082.20 to cure the

default. After Borrowers failed to cure the default, Nationstar filed a foreclosure complaint,

seeking "$340,795.31 that is due on principal on the Note and Mortgage, interest from

October 1, 2009, late charges, costs of collection and reasonable attorney's fees, and

such other expenses as may be permitted by the mortgage." The complaint also included

Seagrove as a defendant, explaining that any interest it may claim in the mortgaged

property "is subordinate, junior, and inferior to the lien of [Nationstar's] Mortgage."



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       Seagrove filed an answer and affirmative defenses seeking, inter alia, "a judgment

determining that [Seagrove's] interest is superior to [Nationstar's] mortgage," and citing

the recorded declaration of charter, easements, covenants, and restrictions for the

neighborhood to support its entitlement to expenses and assessments. Borrowers also

answered the complaint, asserting, as affirmative defenses, lack of standing, failure to

satisfy a condition precedent, and lack of certification.

       The case proceeded to trial in March 2016. At trial, Nationstar called one of its

senior default case specialists. Through this witness, Nationstar successfully admitted the

note, the mortgage, the welcome letter, the default letter, and its payment history for the

mortgage. At the close of trial, Borrowers moved for involuntary dismissal, arguing the

trial court improperly admitted the loan payment history and, thus, Nationstar failed to

establish the amount due. Borrowers further argued the evidence failed to establish any

amounts other than the principal, such as interest or escrow. Seagrove also moved for

involuntary dismissal, arguing Nationstar presented no evidence to rebut Seagrove's

claim that it had a superior lien position relative to the mortgage. In response to

Seagrove's motion, Nationstar requested judicial notice of the recorded general warranty

deed for the subject property, as well as the recorded mortgage, to show that, as a first

mortgage, it had "priority over the homeowner's association lien." The trial court ultimately

ruled as follows:

              Based on the testimony that I received today and the
              arguments that were made, I'm going to deny the motion for
              involuntary dismissal; however, I'm going to find for-- the only
              testimony that I think I can definitely put my finger on is the
              amount of principal that was described. So I'm going to find
              for the plaintiff in the principal amount of $340,795.31. And
              that is -- and find that the homeowner's association, who is
              Seagrove Neighborhood Association, Inc., as their lien is



                                              3
              superior to the mortgage and they are not foreclosed; they are
              dismissed from the action.

Accordingly, the final judgment of foreclosure awarded Nationstar only the principal

balance of $340,795.31.

                                INTEREST AND ESCROW

       Nationstar argues the trial court improperly limited the award to only principal,

ignoring the easily calculable interest and escrow amounts. In a typical foreclosure case,

the plaintiff "proves the amount of indebtedness through the testimony of a competent

witness who can authenticate the mortgagee's business records and confirm that they

accurately reflect the amount owed on the mortgage." Wolkoff v. Am. Home Mortg.

Servicing, Inc., 153 So. 3d 280, 281 (Fla. 2d DCA 2014). Furthermore, "[g]enerally, in a

foreclosure action, unpaid principal and interest are 'liquidated damages.'" Zumpf v.

Countrywide Home Loans, Inc., 43 So. 3d 764, 766 (Fla. 2d DCA 2010) (quoting Asian

Imports, Inc. v. Pepe, 633 So. 2d 551, 552 (Fla. 1st DCA 1994)). "Damages are liquidated

when the proper amount to be awarded can be determined with exactness from the cause

of action as pleaded, i.e., from a pleaded agreement between the parties, by an

arithmetical calculation or by application of definite rules of law." Asian Imports, Inc., 633

So. 2d at 552.

       At trial, Nationstar's witness testified to the fixed interest rate—6.25%—and unpaid

principal—$340,795.31—necessary for determining the amount of interest due. The

payment history and note further support these figures. Nationstar also provided the trial

court with the figures necessary to determine the escrow amount. The witness specifically

addressed escrow amounts as follows:




                                              4
              Q Were there any escrow advances also delineated in the
              payment history?

              A Yes.

              Q And if you were to add them up, would they be -- would they
              concur with the amounts that are due or being sought for in
              the judgment?

              A Yes.

              Q And all those numbers come from the payment history?

              A Yes.

Indeed, the payment history includes a column showing escrow disbursements, labeled

"ESCROW."

       "Values awarded in a foreclosure judgment must be based on competent,

substantial evidence." Boyette v. BAC Home Loans Servicing, LP, 164 So. 3d 9, 10 (Fla.

2d DCA 2015). The witness's testimony, combined with the payment history and the note,

provided the trial court with competent, substantial evidence of the fixed interest rate and

escrow disbursements. Using this trial evidence, the trial court can easily calculate

Nationstar's interest and escrow amounts. See Salauddin v. Bank of Am., N.A., 150 So.

3d 1189, 1190 (Fla. 4th DCA 2014) ("Since the amount of interest from the time the

homeowner defaulted on the loan until May 1, 2012, was based on the starting fixed

interest rate (eight percent), the amount of interest owed for those months is supported

by the note and payment history."); cf. Michel v. Bank of N.Y. Mellon, 191 So. 3d 981,

983–84 (Fla. 2d DCA 2016) (reversing an award of interest where "[t]he bank did not

introduce records in support of the claimed interest or the actual amount contained in the

final judgment" and failed to demonstrate "what the applicable interest rate was from the

time of default or how much interest accrued from that point forward"). Thus, we remand



                                             5
for the trial court to modify the foreclosure judgment to include the interest and escrow

amounts.

                                 LIEN SUPERIORITY

      Nationstar argues the trial court improperly dismissed Seagrove as a superior

lienholder to Nationstar. We reverse the dismissal and remand for the trial court to

reinstate Seagrove as a party to this litigation. Because neither party presented

competent evidence to establish which one had a superior interest, "[o]n remand, either

party may request an evidentiary hearing to resolve this issue." See Hidden Ridge Condo.

Homeowners v. Greentree Servicing, LLC, 167 So. 3d 483 (Fla. 5th DCA 2015) (citing

Schroth v. Cape Coral Bank, 377 So. 2d 50 (Fla. 2d DCA 1979)).

      AFFIRMED in Part; REVERSED in Part; and REMANDED with Instructions.



PALMER and LAMBERT, JJ., concur.




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