        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

            FEDERAL HOME LOAN MORTGAGE CORPORATION,
                            Appellant,

                                        v.

                              JAMES BEEKMAN,
                                  Appellee.

                                No. 4D13-4086

                               [August 19, 2015]

   Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Howard H. Harrison, Senior Judge;
L.T. Case No. 502009CA001458XXXNB.

    Alen H. Hsu and Michael A. Rodriguez of Blank Rome LLP, Boca Raton,
for appellant/cross-appellee.

   Neil F. Garfield of The Garfield Firm, Tallahassee, and Patrick B. Giunta
of Patrick B. Giunta, P.A., Fort Lauderdale, for appellee/cross-appellant.

FORST, J.

   Appellant Federal Home Loan Mortgage Company appeals the trial
court’s entry of an order granting a loan modification to Appellee/Cross-
Appellant James Beekman (“Borrower”).1 Appellant asserts the issue of
loan modification was neither requested in Borrower’s pleadings nor tried

1 Borrower cross-appeals the trial court’s denial of his motion to amend his
answer and affirmative defenses. Florida Rule of Civil Procedure 1.190(a), which
governs amendments to pleadings, “reflect[s] a clear policy that, absent
exceptional circumstances, requests for leave to amend pleadings should be
granted.” Thompson v. Jared Kane Co., 872 So. 2d 356, 360 (Fla. 2d DCA 2004).
“A trial court's refusal to allow amendment . . . generally constitutes an abuse of
discretion ‘unless the privilege has been abused, there is prejudice to the
opposing party, or amendment would be futile.’” PNC Bank, N.A. v. Progressive
Emp’r Servs. II, 55 So. 3d 655, 660 (Fla. 4th DCA 2011) (quoting Fields v. Klein,
946 So. 2d 119, 121 (Fla. 4th DCA 2007)). However, the rule of liberality
“gradually diminishes as the case progresses to trial” and “[t]here comes a point
in litigation where each party is entitled to some finality.” Noble v. Martin
Memorial Hosp. Ass’n Inc., 710 So. 2d 567, 568 (Fla 4th DCA 1997).
by consent. Because we agree with Appellant’s arguments, we accordingly
reverse the trial court’s decision.

                               Background

   In 2005, Borrower executed a note and home mortgage agreement.
Ultimately, Appellant became the holder of the note. When Borrower
ceased making payments on the mortgage, Appellant filed a foreclosure
action. Borrower answered the complaint, admitting that payments on the
mortgage had not been paid, but asserted a single affirmative defense of
lack of standing.

   The matter was set for non-jury trial on October 21, 2013. On October
10, Borrower sought leave to amend his answer to raise nineteen
additional affirmative defenses and to file a counterclaim with eleven new
causes of action. This motion was denied, with the trial court finding
Borrower’s counterclaim was not compulsory and was “a delay tactic and
abuse of pleading practice.”

    At trial, Appellant introduced testimony from a witness who stated that
Borrower was in default on his loan and that Appellant had standing to
foreclose at the time the complaint was filed. The witness further testified
that Appellant’s business records, including the loan payment history,
were reviewed for accuracy when they were obtained from a prior lender,
but conceded that the amount owed in Appellant’s proposed final
judgment was incorrect. The witness also stated that Borrower made four
payments as part of a trial loan modification, all of which were late, and
failed to submit the necessary documentation of his income in order to
qualify for a permanent modification.

   Borrower testified on his own behalf and introduced a modification
agreement, which he claims showed he qualified for a permanent
modification.    Borrower stated that he submitted the financial
documentation requested by the lenders for a modification at least five
times. Borrower claimed the lenders repeatedly and intentionally lost his
modification paperwork and denied his modification, with a prior lender’s
representatives telling him “the investors had better options, plain and
simple.” Borrower testified he never had any communications or business
dealings with Appellant, but stated that he would pay a modification if
given one. Borrower also stated he believed he had been given a
permanent modification, but agreed that he had never received an
approved modification agreement.

   The trial court found that Borrower qualified for the modification

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agreement offered to him and that his application was rejected due to a
lack of investors, which the court found was “not a legitimate basis.” The
trial court further found that the modification issue was tried by consent
and ordered the parties to comply with the modification offer. Appellant
now appeals the entry of this final judgment, arguing the judgment must
be vacated as void and that the trial court exceeded its powers by creating
a new contract for the parties. Borrower cross-appeals, arguing the trial
court erred by denying his motion to amend his answer and file
counterclaims.

                                   Analysis

   Generally, “courts are not authorized to grant relief not requested in
the pleadings.” Cardinal Inv. Grp., Inc. v. Giles, 813 So. 2d 262, 263 (Fla.
4th DCA 2002); see also Homestead-Miami Speedway, LLC v. City of Miami,
828 So. 2d 411, 413 (Fla. 3d DCA 2002); Pond v. McKnight, 339 So. 2d
1149 (Fla. 2d DCA 1976). “[A] judgment which grants relief wholly outside
the pleadings is void.” Bank of N.Y. Mellon v. Reyes, 126 So. 3d 304, 309
(Fla. 3d DCA 2013).

    An exception to the rule requiring relief to be pled is if the issue is tried
by consent of the parties. “When issues not raised by the pleadings are
tried by express or implied consent, they shall be treated in all respects as
if they had been raised in the pleadings.” Fla. R. Civ. P. 1.190(b). An issue
is tried by consent “when there is no objection to the introduction of
evidence on that issue.” Scariti v. Sabillon, 16 So. 3d 144, 145-46 (Fla. 4th
DCA 2009) (quoting LRX, Inc. v. Horizon Assocs. Joint Venture ex rel.
Horizon-ANF, Inc., 842 So. 2d 881, 887 (Fla. 4th DCA 2003)); see also
Robinson v. Robinson, 340 So. 2d 935, 936 (Fla. 4th DCA 1976) (stating an
issue was tried by consent where, “without objection from either party the
issue was presented, considered and ruled on by the trial court”). The
Second District held that the key test of determining “whether an issue
has been tried by implied consent is whether the party opposing
introduction of the issue into the case would be unfairly prejudiced
thereby.” Smith v. Mogelvang, 432 So. 2d 119, 122 (Fla. 2d DCA 1983).
“[A]n unpleaded issue is considered as having been tried or not tried by
implied consent under two interrelated criteria involving (a) whether the
opposing party had a fair opportunity to defend against the issue and (b)
whether the opposing party could have offered additional evidence on that
issue if it had been pleaded.” Id.

  In this case, the issue of loan modification was neither requested in
Borrower’s pleadings nor tried by consent. While Appellant may have
mentioned the fact that Borrower had been denied a modification, it

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objected to testimony which seemed to imply that Borrower sought a
modification or referred to alleged errors in the denial of the modification.
Appellant’s failure to object to every single mention of the failed
modification does not imply consent. When it became clear that Borrower
was going to be given substantial leeway for narrative testimony, Appellant
was granted a continuing objection to matters that were outside the scope
of evidence. “Because [Appellant] was given a continuing objection to
certain lines of question, the record on this point is concededly
ambiguous.” Buday v. Ayer, 754 So. 2d 771, 773 (Fla. 2d DCA 2000).
“Nevertheless, . . . even if [Appellant]’s counsel did neglect to object, this
failure, ‘whether due to mistake or momentary lapse of attentiveness,’ is
insufficient to establish consent for purposes of rule 1.190(b).” Id. (quoting
Mogelvang, 432 So. 2d at 124).

    Here, Appellant was denied an opportunity to defend against the issue
of loan modification and could have offered additional evidence had the
issue been pled. Nothing in the trial testimony was likely to have put the
Appellant on notice that Borrower was seeking modification as a remedy.
Borrower argues his statement - that if given a modification, he would pay
it - indicates that he requested a modification. However, this solitary
statement was insufficient to notify Appellant that a modification was a
possible remedy in this case, particularly where Appellant had a
continuing objection to the repeated discussion about alleged errors in the
modification application process.

   Because Appellant objected to the introduction of testimony about the
modification and did not present evidence to defend against that issue due
to a lack of notice that modification was at issue, this issue was not tried
by consent. Because loan modification was outside the scope of the
pleadings and Appellant did not consent to the trial of this issue,
modification was not a valid remedy before the court. As such, the
judgment is void.

    Furthermore, the trial court exceeded its authority by granting an
unbargained-for modification contract. “A court will reform a contract if it
fails to express the parties’ intentions because of fraud, mutual mistake,
accident or inequitable conduct.” Belitz v. Riebe, 495 So. 2d 775, 776 (Fla.
5th DCA 1986). “However, a court has no right to write a contract for
parties where none exists.” Id. at 777. Likewise, “[i]t is never the role of
the trial court to rewrite a contract to make it more reasonable for one of
the parties or to relieve a party from what turns out to be a bad bargain.”
Feldman v. Kritch, 824 So. 2d 274, 277 (Fla. 4th DCA 2002).

   Here, the loan modification agreement was submitted into evidence.

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The plain language of the agreement states, “This Agreement is not binding
on Note Holder, unless and until Note Holder, or servicing agent, IndyMac
Federal Bank FSB (“IndyMac”), verifies that you qualify for this
modification offer. If you qualify, IndyMac will sign and return this
Agreement to you, and it will be effective on the date it is signed by
IndyMac. If you do not make all payments when due while we verify that
you qualify, or if you do not qualify, your Note will not be modified.” The
parties agree the Agreement was not signed by IndyMac or returned to
Borrower.

   Appellant’s obligations under the modification agreement were
explicitly conditioned on Borrower’s qualification for the offer and timely
payment. There was contradictory evidence as to whether Borrower made
timely payments under the trial modification. Even assuming these
payments were timely, however, there was not competent substantial
evidence to support the trial court’s finding that Borrower qualified for the
modification. Appellant presented testimony that Borrower’s income and
paperwork were insufficient to qualify for the modification. There was no
evidence stating that Borrower’s income was sufficient to qualify, only an
assertion by Borrower that bank representatives told him “the investors
had better options, plain and simple.” Additionally, the payment amounts
required under the trial court’s order do not reflect the payment plan
specified in the modification agreement and several key terms of the new
contract were left unspecified, including the total amount owed. There
was simply no evidence on this record to support the trial court’s
conclusion that Borrower was entitled to a modification or to support the
terms of the modification as granted.

                                Conclusion

   The trial court erred by granting relief that was outside the scope of the
pleadings and was not tried by consent. The court also erred by imposing
a new contract on the parties that was wholly unbargained-for and the
terms of which lacked evidentiary support. Therefore, we reverse and
remand this case for new trial. Should Borrower meet the established legal
standard governing the amendment of pleadings, he should be allowed to
amend his answer and affirmative defenses.

   Reversed and remanded for new trial.

CIKLIN, C.J., and KLINGENSMITH, J., concur.

                            *         *        *


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Not final until disposition of timely filed motion for rehearing.




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