FLORIDA APPELLATE COURT REVERSES INVOLUNTARY DISMISSAL OF FORECLOSURE ACTION FINDING EVIDENCE OF AMOUNTS DUE TO BE SUFFICIENT

Florida’s Second DCA recently reversed an order which dismissed Deutsche Bank’s (the “Bank”) foreclosure action against Carmen and Alfredo Del Callejo (the “Borrowers”). Deutsche Bank Nat'l Tr. Co. v. Del. Callejo, No. 2D2024-1696, 2025 Fla. App. LEXIS 7999, at *1 (2d DCA Oct. 24, 2025). The Borrowers took out a mortgage loan sometime prior to 2008 and then defaulted by failing to make their October 2008 payment. 1

The Bank initiated foreclosure proceedings and also sought to reform the mortgage (for unstated reasons) and the matter proceeded to trial. At trial the payment history showed the principal balance after the Borrowers made their last payment was $125,613.85. 2 Notably, the payment history also reflected an “Administrative Adjustment” on January 1, 2009, which increased the principal amount to $130,015.91. The Bank also introduced the judgment figures to support the amounts due, but the court found the figures to be untrustworthy based on the discrepancy in the principal amount and excluded them.

During trial the Bank’s witness explained the discrepancy in the principal amount was due to an offered loan modification which the Borrowers never accepted. 3 The witness admitted the increase in principal should have been re-adjusted in the payment history since the Borrowers never accepted the modification offer, but confirmed the Bank was pursuing foreclosure based on the original, unmodified loan and the October 2008 default date. 4

Once the Bank rested its case, the Borrowers moved for an involuntary dismissal of the mortgage foreclosure claim arguing that the Bank failed to present “any competent substantial evidence of its damages…” 5 The trial court agreed and dismissed the Bank’s complaint, including the reformation count. The Bank appealed the dismissal and won.

Firstly, the DCA pointed out that even though there was a discrepancy between the two principal amounts, that discrepancy was adequately explained by the Bank’s witness so, viewed “in the light most favorable to the non-moving party,” the $125,613.85 sought by the Bank was supported by competent substantial evidence. Secondly, the Court explained that even if some of the evidence conflicted, the existence of a conflict did not render the Bank’s evidence incompetent. 6 Further, in the context of a motion for involuntary dismissal, a “reliability determination” on the merit of conflicting evidence was improper.

The DCA did agree with the trial court’s decision to exclude the “judgment figure document,” but not because the document was untrustworthy. 7 Rather, the DCA explained the judgment figure document did not qualify as an exception to the hearsay rule because it was a “summary prepared for use at trial.” 8 The Court surmised the document could not be considered a business record because it was prepared shortly before trial so “logically, [it] could not have been a record of transactions that was made ‘at or near the time’ of those transactions…” a required element for a document to be admissible as an exception to the hearsay rule.

This latter finding is troubling as lenders frequently rely on the judgment figures to support the damages sought. Generally, the judgment figure document is considered a compilation of data which contains information that is entered at the time of the transactions. From the opinion, it is not clear whether this was argued by the Bank or considered by the DCA. Since the DCA reversed the dismissal order and remanded for further proceedings, the Bank will have another opportunity to prove its damages.

1 Del Callejo, at *1-2.

2 Del Callejo, at *2. Future references to this case are to this citation unless otherwise indicated.

3 Del Callejo, at *2. Future references to this case are to this citation unless otherwise indicated.

4 Del Callejo, at *2-3.

5 Del Callejo, at *3. Future references to this case are to this citation unless otherwise indicated.

6 Del Callejo, at *5 (quoted source omitted). Future references to this case are to this citation unless otherwise indicated.

7 Del Callejo, at *12-13. Future references to this case are to this citation unless otherwise indicated.

8 Del Callejo, at *12. Future references to this case are to this citation unless otherwise indicated.

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