PAUL WAGNER, APPELLANT,
v.
BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, L.P., F/N/A COUNTRYWIDE HOME LOANS SERVICING, L.P., APPELLEE
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Paul Wagner appealed a foreclosure judgment, challenging the trial court's award of damages for collection costs, attorney's fees, property inspections, and insurance. The appellate court affirmed the liability finding but reversed and remanded the damages award because the trial court lacked competent, substantial evidence to support specific damage awards and failed to hold a required evidentiary hearing on attorney's fees.
The court affirmed the liability finding but reversed the damages award because: (1) the $9,588.85 for collection costs and attorney's fees was not supported by competent, substantial evidence and required an evidentiary hearing that was not held; (2) the $3,619 for property inspections was not reflected on the payment history and lacked evidentiary support; and (3) the insurance damages calculation exceeded the amount proven by $149.
[1] A damages award must be supported by competent, substantial evidence.
[2] A trial court errs in awarding attorney's fees and costs without conducting an evidentiary hearing where a party has the opportunity to dispute the reasonableness of the…
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Join FLexlaw to unlock all legal intelligence“A damages award must be supported by competent, substantial evidence.”
Establishes the evidentiary standard the trial court must meet for damage awards
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Join FLexlaw to unlock all legal intelligenceWagner defaulted on a mortgage loan serviced by BAC Home Loans Servicing, LP (later Bank of America, N.A.). The trial court entered a final judgment o…
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Paul Wagner appeals a final judgment of foreclosure entered in favor of BAC Home Loans Servicing, LP, the predecessor in interest to appellee Bank of America, N.A. (collectively referred to as the bank). We affirm the finding of liability in the final judgment without comment, but we reverse and remand for further proceedings on damages.
Wagner claims that the trial court erred in awarding $9588.85 for the costs of collection (including attorney’s fees) when there was no evidence presented to support this amount. He also contends that the trial court erred in including $3619 for property inspections because there was no evidence to support this amount.
A damages award must be supported by competent, substantial evidence. See Shakespeare v. Prince, 129 So.3d 412, 413-14 (Fla. 2d DCA 2013). The $3619 awarded to the bank for property inspections was not reflected on the payment history admitted at trial, which was the only evidence offered by the bank regarding the non-principal amounts owed by Wagner. The $9588.85 for costs of collection, which included costs paid by the bank’s counsel and attorney’s fees charged by the bank’s counsel, were also not reflected on the payment history. The only evidence of these costs and fees was an affidavit filed by the bank’s counsel prior to trial, but as all parties agreed below, Wagner was entitled to an evidentiary hearing on the amount of attorney’s fees and costs sought by the bank.1 See Newman v. Newman, 121 So.3d 661, 662 (Fla. 1st DCA 2013) (holding that trial court “erred in awarding fees and costs without conducting a hearing and giving [a]ppellant the opportunity to dispute the reasonableness of the attorney’s hourly rate and time claimed”). Therefore, there was no competent, substantial evidence to support the award of damages for the $9588.85 for costs of collection or the $3619 for property inspections.
Wagner also argues that the trial court’s calculations for insurance damages exceeded the actual amount reflected on the payment history, and our review of the payment history indicates that the amount awarded to the bank for insurance payments exceeded the actual amount proven by $149.
Accordingly, we reverse the final judgment as to damages and remand for further proceedings on the issue of attorney’s fees and costs. On remand, the trial court shall also correct the calculation of insurance damages and eliminate the $3619 awarded for inspections.
Affirmed in part, reversed in part, and remanded.
SILBERMAN and LaROSE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Colson v. State Farm Bank, 183 So. 3d 1038 (Fla. 2d DCA 2015)…ness merely affirmed that the numbers in the proposed final judgment were correct without elaboration or explanation. This is a sufficiency of the evidence claim and our review is for competent, substantial evidence. See Wagner v. Bank of Am,, N.A., 143 So. 3d 447, 448 (Fla. 2d DCA 2014). As has been consistently stated in foreclosure cases, a sufficiency of the evidence claim may be raised for the first time on appeal. See Fla. R. Civ. P. 1.530(e); Lacomhe v. Deutsche Bank Nat’l Trust Co., 149 So. 3d 152, 15…
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Michel v. The Bank OF NEW York Mellon, 191 So. 3d 981 (Fla. 2d DCA 2016)…e attorney’s fee award, the appellate court will reverse the award without remand for additional evidentiary findings” (quoting Diwakar v. Montecito Palm Beach Condo. Ass’n, 143 So. 3d 958, 961 (Fla. 4th DCA 2014))); cf. Wagner v. Bank of Am., N.A., 143 So. 3d 447, 448. (Fla. 2d DCA 2014) (remanding for an, evidentiary hearing on attorney’s fees when the bank had filed an affidavit of attorney’s fees and the parties had agreed at trial that live testimony to prove fees was required). In summary, the trial co…
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Petrovsky v. HSBC Bank, 185 So. 3d 700 (Fla. 4th DCA 2016)…into evidence during trial. This court found the evidence insufficient to support the attorney’s fee award, and reversed and remanded for the trial court to take additional evidence on attorney’s fees. Similarly, in Wagner v. Bank of America, N.A., 143 So. 3d 447, 448 (Fla. 2d DCA 2014), the court remanded for an evidentiary hearing on the amount of attorney’s fees where the only evidence of fees was an affidavit filed by the bank prior to trial. Like in Diwakar and Wagner, the attorney’s fees affidavits HS…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Newman v. Newman, 121 So. 3d 661 (Fla. 1st DCA 2013)
- Shakespeare v. Prince, 129 So. 3d 412 (Fla. 2d DCA 2013)