       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 30, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1197
                         Lower Tribunal No. 10-493-K
                             ________________


                       Chase Home Finance, LLC,
                                    Appellant,

                                        vs.

                       Maria Galletti Autrey, et al.,
                                    Appellees.


      An Appeal from the Circuit Court for Monroe County, Donald C. Evans,
Senior Judge.

       Akerman LLP and Nancy M. Wallace (Tallahassee) and William P. Heller
(Fort Lauderdale) and Eric M. Levine (West Palm Beach), for appellant.

     David E. Borack (Longwood), for appellee Michael Hill.


Before WELLS, SALTER and EMAS, JJ.

     SALTER, J.
      Chase Home Finance, LLC (“Chase”), appeals an order dismissing its

mortgage foreclosure complaint without prejudice and an order denying rehearing

following the dismissal. Finding that Chase was prejudiced by differing rulings at

and after a non-jury trial of the case (because of the reassignment of the case to a

different judge), and that the dismissal was erroneous, we reverse and remand the

case for further proceedings.

      The five-year procedural history of the case in the trial court is convoluted,

but can be distilled to the following pertinent points. Ms. Autrey and others

obtained a residential mortgage loan in 2006 for $368,000.00 from JPMorgan

Chase Bank. The loan was secured by non-homestead property owned by Ms.

Autrey in Monroe County. Following an alleged default in August 2009 and the

transfer of the loan and security to Chase, Chase commenced an “in rem”

foreclosure in April 2010.1 Two months later, Chase filed and served a motion for

summary judgment. Chase’s affidavit for amounts due and owing as of June 11,

2010, totaled $381,281.02.

      Following an amendment to the complaint and other pretrial proceedings,

the case was set for non-jury trial in January 2015. Chase presented two witnesses,

and the note, mortgage, notice of default, and assignment of mortgage were


1 Chase later merged with JPMorgan Chase Bank, but the foreclosure case below
and this appeal have been continuously prosecuted with Chase as the plaintiff. The
servicer for the loan commencing as of January 2014 was Pennymac Corp.

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introduced into evidence. The loan servicer (one of the witnesses presented by

Chase, from Pennymac) authenticated a loan history for the mortgage loan going

back to February 2012 (although the alleged default had commenced in 2009).

Chase rested its case, as did defendants. The trial judge held that the evidence was

sufficient to allow entry of a foreclosure judgment in favor of Chase, but expressed

reservation regarding the incomplete payment history.2 The trial judge declined to

enter judgment until (a) Chase provided a full payment history to defendants and

(b) defendants could obtain cross-examination on the earlier, missing parts of the

payment history (if requested).

      A week later, a defendant moved for involuntary dismissal, arguing that

Chase’s failure to introduce a complete payment history at trial warranted

dismissal. The defendant also alleged that Chase had not provided the additional

payment history as ordered.       In early February 2015, a second judge (newly

assigned to the case) granted the involuntary dismissal without a hearing. Chase

timely moved for rehearing (noting that it had provided the additional payment

history to the defendants promptly after receiving it), but the motion was denied in

May 2015. This appeal followed.




2Defendants had not objected to the incomplete history, or moved for involuntary
dismissal, when Chase and the defendants rested their respective cases. The
defendants presented no evidence.

                                         3
      On this record, involuntary dismissal of the case without a hearing was

unwarranted. Dismissal was apparently entered as a sanction based on the second

judge’s view that Chase had failed to comply with the first judge’s ruling.3 If the

second judge concluded that there remained a disputed issue of fact regarding the

amount of the indebtedness, resolution of that issue would require a trial de novo

before the second judge. Davalos v. Davalos, 592 So. 2d 1171 (Fla. 3d DCA

1992).   The first judge essentially reopened Chase’s case to permit Chase to

present the additional payment history for review by the defendants. The first

judge did not set a deadline for delivery of that information to the defendants, nor

did he specify that Chase’s complaint would be dismissed without a hearing if

Chase failed to provide the information.

      Under these unusual circumstances, this was reversible error by the

successor judge, denying Chase due process. Universal Ins. Co. of N. Am. v.

Warfel, 82 So. 3d 47 (Fla. 2012); Coleman Co. v. Cargill Int’l Corp., 731 So. 2d 2

(Fla. 3d DCA 1998).



3 No basis for such a sanction is disclosed by this record, and no hearing was
conducted to determine whether any sanction—much less the sanction of
dismissal, was warranted, at a time when a re-filing may be barred by the statute of
limitations (an issue presently before the Supreme Court of Florida in U.S. Bank
National Ass’n v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014), review granted,
160 So. 3d 892 (Fla. 2014), and before this Court on rehearing en banc in Deutsche
Bank Trust Co. Americas v. Beauvais, 40 Fla. L. Weekly D1 (Fla. 3d DCA Dec.
17, 2014)).

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      Reversed and remanded for further proceedings (limited to the prior loan

history and determination of the correct loan balance, should the first judge be

reassigned to the case, or for the entire case to be heard as a trial de novo if that

judge is not reassigned to the case).




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