TERRA FIRMA HOLDINGS, A FLORIDA LIMITED LIABILITY COMPANY, APPELLANT,
v.
FAIRWINDS CREDIT UNION, A FLORIDA CHARTERED CREDIT UNION, APPELLEE
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Terra Firma Holdings appealed a summary judgment of foreclosure entered against it by Fairwinds Credit Union. The court reversed because Fairwinds failed to prove the pleaded basis for default (non-payment of the June 15, 2007 payment) and could not rely on an unpleaded theory of default based on loan maturity.
Fairwinds failed to prove the pleaded default and could not rely on an unpleaded theory of default based on maturity because maturity was never pleaded in the complaint and was not tried by consent of the parties.
[1] A plaintiff must prove the basis for default as pleaded in the mortgage foreclosure complaint.
[2] A party seeking summary judgment must conclusively establish all elements of its claim.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the record contains evidence that this monthly payment was made in accordance with an agreement reached by the parties”
Establishes that the pleaded basis for default (non-payment of June 15, 2007 payment) was not proven
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Join FLexlaw to unlock all legal intelligenceFairwinds filed a mortgage foreclosure complaint on August 17, 2007, alleging that Terra Firma defaulted by failing to make a June 15, 2007 payment. I…
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Terra Firma Holdings appeals a summary final judgment of foreclosure entered in favor of Fairwinds Credit Union. We reverse.
The sole basis pleaded by Fair-winds in the mortgage foreclosure complaint, which was filed on August 17, 2007, was that Terra Firma defaulted by failing to make a June 15, 2007, payment. Based on that asserted default, Fairwinds elected to accelerate the balance of the payments due under the mortgage and a promissory note. However, in seeking summary judgment, Fairwinds did not conclusively establish that the June 15, 2007, payment was not made. To the contrary, the record contains evidence that this monthly payment was made in accordance with an agreement reached by the parties.
On appeal, Fairwinds argues that, even if the June 15, 2007, payment was made, Terra Firma defaulted because it failed to pay the balance of the loan on the maturity date, August 15, 2007. However, maturity as a basis of default was not pleaded. Notably, a modification was entered into in July 2007, extending the maturity date to August 15, 2007. Fairwinds never mentioned this modification to the trial court.
Fairwinds could have asserted in its complaint filed August 17, 2007, that the obligation had matured, but it did not. Further, Fairwinds could have moved to amend its complaint pursuant to Florida Rule of Civil Procedure 1.190, asserting that the obligation had matured and that Terra Firma defaulted by not paying the balance of the loan. This also was not done.
“[Ijssues in a cause are made solely by the pleadings.... ” Hart Props., Inc. v. Slack, 159 So.2d 236, 239 (Fla.1963). “[T]he only instance in which legal issues not raised in the pleadings may be tried and decided is where the issue, although not pled, is tried by consent of the parties.” Id. In the present case, issues involving the maturity of the loan were not tried by consent.
Because the pleaded basis asserted for the default was not proven, and because default as a result of failing to pay the matured obligation was not pleaded, we are compelled to reverse the final summary judgment.
Reversed.
WALLACE and KHOUZAM, JJ„ Concur.
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Moshe Mazine and Jaacov E. Bouskila v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011)…a holder. See § 673.3011, Fla. Stat. (2009); Taylor v. Deutsche Bank Nat. Trust Co., 44 So. 3d 618 (Fla. 5th DCA 2010). An allegation of default in a complaint must be proven by competent evidence. See Terra Firma Holdings v. Fairwinds Credit Union, 15 So. 3d 885 (Fla. 2d DCA 2009). In January 2009, M & I Bank filed a complaint seeking foreclosure of a mortgage naming Mazine and Bouskila as party defendants. An amended complaint later followed, but the named plaintiff remained the same. After several motion…
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