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/CrossAppellant 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).
2

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 
3

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 
4

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. 
5

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.

* * *
6

Not final until disposition of timely filed motion for rehearing.