PATRICIA A. ASSELTA, INDIVIDUALLY AND AS TRUSTEE OF THE PATRICIA A. ASSELTA REVOCABLE LIVING TRUST vs ALPHA PRIME II, LLC, EXCEL WEST RIO, LLC, GARY J. PAPA, COQUINA LAKES CONDOMINIUM ASSOCIATION, INC., OCEANS PALMS HOMEOWNERS ASSOCIATION, INC., AND DEREK MUEHRCKE
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED PATRICIA A. ASSELTA, INDIVIDUALLY AND AS TRUSTEE OF THE PATRICIA A. ASSELTA REVOCABLE LIVING TRUST, Appellant, v. Case No. 5D20-1687 ALPHA PRIME II, LLC, EXCEL WEST RIO, LLC, GARY J. PAPA, COQUINA LAKES CONDOMINIUM ASSOCIATION, INC., OCEANS PALMS HOMEOWNERS ASSOCIATION, INC., AND DEREK MUEHRCKE, Appellees. ________________________________/ Opinion filed July 16, 2021 Appeal from the Circuit Court for St. Johns County, R. Lee Smith, Judge. C. Popham Decunto and Kevin A. Schoeppel, of Durant, Schoeppel & Decunto, P.A., Jacksonville, for Appellant. Riley Cirulnick and Craig A. Pugatch, of Lorium Law, Fort Lauderdale, for Appellees. SASSO, J. Appellant, Patricia A. Asselta, both individually and as Trustee of the Patricia A. Asselta Revocable Living Trust, appeals the final judgment of foreclosure entered in favor of Alpha Prime II, LLC (“Alpha Prime”). Because we are bound by this court’s decision in Shephard v. Ouellete, 854 So. 2d 251, 252–53 (Fla. 5th DCA 2003), we conclude we have jurisdiction. On the merits, we agree with Appellant that there is a disputed issue of material fact as to the amount of indebtedness for two reasons. First, the trial court erred in its determination as to the principal balance owed because the undisputed evidence demonstrated the subject mortgage limited this amount to $800,000. Second, the undisputed evidence established that Alpha Prime garnished $11,649.42 from Appellant’s bank account and Appellant paid $18,000.00 in mortgage payments throughout the pendency of the action. However, the final judgment does not reflect a reduction for these amounts. Furthermore, there is a genuine issue of material fact as to the proper application of a credit for these amounts. Accordingly, we reverse and remand for additional proceedings consistent with this opinion. In all other respects, we affirm. REVERSED and REMANDED. 2 EDWARDS and EISNAUGLE, JJ., concur. 3
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