       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                       MOHAMMAD SALAUDDIN,
                            Appellant,

                                    v.

                       BANK OF AMERICA, N.A.,
                              Appellee.

                             No. 4D13-2747

                          [November 12, 2014]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; James W. Midelis, Senior Judge; L.T. Case No.
2008CA006539.

  Andrea H. Duenas of Law Office of A. Duenas, P.A., Lantana, for
appellant.

   Travis Halstead of McCalla Raymer, LLC, Orlando, for appellee.

PER CURIAM.

   Appellant, Mohammad Salauddin (“the homeowner”), appeals the trial
court’s order granting final judgment in favor of Bank of America (“the
bank”), specifically as to the amount of interest the trial court ordered.
The homeowner argues that, since the bank did not produce evidence of a
change in the interest rate, the trial court erred in adopting the interest
amount set forth in the bank’s proposed final judgment. We agree and
reverse.

   The bank filed a one count mortgage foreclosure complaint based on a
mortgage and note executed by the homeowner. The note was an
adjustable rate note, and based on its terms, the yearly interest rate was
set at eight percent. However, beginning on May 1, 2012, and every six
months thereafter, the interest rate would change based on an index. The
note stated that although the interest rate could change, it could never be
less than five percent or greater than thirteen percent.
    In June 2013, a trial was held on the mortgage foreclosure count. At
trial, the homeowner’s payment history was entered into evidence, as well
as the note, and the trial court also took judicial notice of the original note
which had previously been filed with the court. The bank’s representative
also testified that the date of the last payment made by the homeowner
was in December 2007, and therefore, the default date was in January
2008.

   At the end of the bank’s case, the homeowner moved for an involuntary
dismissal based on the fact that the bank failed to prove the interest rate.
The motion was denied. After the homeowner rested his case without
presenting any evidence, the homeowner requested that any interest
contained within the proposed final judgment, prepared by the bank, be
removed, because the bank failed to prove the interest rate. The following
exchange occured:

      HOMEOWNER’S COUNSEL: Judge, it’s just our position
      though that the actual evidence at the trial did not support
      the interest rate.

      THE COURT: Well, if the - - okay. Now, if the business record
      is admitted in evidence, all of the figures in there are
      admissible as well.

    The trial court entered a final judgment of foreclosure in favor of the
bank, ordering an interest award of $106,499.87. The homeowners timely
filed a notice of appeal.

    The standard of review for a motion for involuntary dismissal made at
trial is de novo. See Martin Cnty. v. Polivka Paving, Inc., 44 So. 3d 126, 131
(Fla. 4th DCA 2010) (explaining that the standard of review for a motion
for directed verdict is de novo); Charlotte Asphalt, Inc. v. Cape Cave Corp.,
406 So. 2d 1234, 1236 (Fla. 2d DCA 1981) (explaining that motions for a
directed verdict and motions for an involuntary dismissal at a nonjury trial
are governed by the same principles).

    Since the note and payment history were entered into evidence at trial,
there was a basis for the court to determine the starting interest rate and
the remaining amount owed by the homeowner. What was not presented
at trial was whether there were any changes in the interest rate based on
the adjustable rate clause in the note, and what those changes were.

   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

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(eight percent), the amount of interest owed for those months is supported
by the note and payment history. However, the amount of the actual
interest rate after May 2012, is unknown, and there was no testimony or
evidence provided at trial as to the actual interest rate for those months.
Therefore, since the note stated that the interest rate would not drop below
five percent, this percentage was the only proof the bank supplied at trial,
and the trial court should have used this interest rate to calculate the
amount of interest after May 1, 2012. We do not agree with the bank that
the difference between the amount of interest ordered and the amount
based on the five percent interest rate is de minimis.

   We therefore reverse the trial court’s order as to the amount of interest,
and remand for the trial court to calculate the interest amount (five percent
after May 1, 2012) consistent with this opinion.

   Reversed and remanded.

WARNER, MAY and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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