MARIE CARMEN KEBREAU, APPELLANT,
v.
BAYVIEW LOAN SERVICING, LLC, IN SUBSTITUTION FOR THE ORIGINAL PLAINTIFF CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE FOR NORMANDY MORTGAGE TRUST, SERIES 2013-18, APPELLEE
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A homeowner appealed a final judgment of foreclosure, challenging the statute of limitations bar, the validity of the mortgage deed, and the attorney's fees award. The Fourth District Court of Appeal affirmed the foreclosure judgment on the statute of limitations and deed validity issues but reversed the attorney's fees award due to insufficient evidence.
The complaint was not barred by the statute of limitations because it alleged continuing defaults within the five-year period. The homeowner waived her challenge to the deed's validity by failing to raise it in her answer, and any defect was cured under the after-acquired title doctrine. The attorney's fees award was reversed due to insufficient evidence.
[1] A foreclosure action is not barred by the statute of limitations if the complaint alleges continuing defaults that occurred within the limitations period.
[2] A defense challenging the validity of a deed must be raised in the answer to preserve the claim.
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Join FLexlaw to unlock all legal intelligence“the allegations of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations”
Establishes that continuing default allegations, not just the initial default date, satisfy the statute of limitations requirement
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Join FLexlaw to unlock all legal intelligenceThe homeowner defaulted on mortgage payments beginning in July 2010. The complaint, filed more than five years later, alleged both the initial July 20…
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A homeowner appeals a final judgment of foreclosure, raising multiple issues. We address briefly the homeowner’s argument that the foreclosure action was barred by the statute of limitations, as well as' her contention that the mortgage was invalid because the deed to her was legally insufficient. We hold that the complaint was not barred by the statute of limitations where it alleged continuing defaults. As to the deed, the homeowner failed to properly raise her claim of its invalidity, and in any event, its defect was cured through the after-acquired title doctrine. We reverse, however, the attorney’s fees award, as .the appellee concedes that it did not present sufficient evidence to. support the attorney’s fees in the final judgment.
The homeowner argues that the final judgment of foreclosure should be reversed as barred by the statute of limitations because the complaint alleges'‘that the homeowner defaulted in failing to make the payment due in July 2010, which occurred more than five years prior to the complaint being filed. The appellee counters that the complaint also alleged that the homeowner had failed to make all subsequent payments. Thus, the complaint alleged defaults that fell within the five-year limitations period. The Second District Court of Appeal-addressed nearly identical facts in both Bollettieri Resort Villas Condominium Ass’n, Inc. v. Bank of New York Mellon, 198 So.3d 1140 (Fla. 2d DCA 2016), and Desylvester v. Bank of New York Mellon, No. 2D15-5053, 219 So.3d 1016, 2017 WL 2562370 (Fla. 2d DCA June 14,. 2017). It concluded that “the .allegar tions of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations.” Desylvester, at 1020, at *3. We agree with Bollettieri and Desylvester. Accord Deutsche Bank Tr. Co. Ams. v. Beauvais, 188 So.3d 938, 945 (Fla. 3d DCA 2016) (en banc); Kaan v. Wells Fargo Bank, N.A., 981 F.Supp.2d 1271, 1274 (S.D. Fla. 2013). Contra Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 959 (Fla. 5th DCA, 2016) (holding that a foreclosure complaint alleging a default in payment in 2006 and all subsequent payments was barred by statute of limitations because the date of default was more than five years prior to filing complaint).
The homeowner also contends that the mortgage was invalid because she failed to acquire legal title to the property due to k defect in the legal description in the deed to homeowner. The homeowner waived this defense, however, by not raising it in her answer. See Heartwood 2, LLC v. Dori, 208 So.3d 817, 821 (Fla. 3d DCA 2017). Moreover, under the after-acquired title doctrine, any error in the original deed was corrected by a subsequent corrective deed. See Layne v. Layne, 74 So.3d 161, 163 (Fla. 1st DCA 2011); BMCL Holding LLC v. Wilmington Tr., N.A., 201 So.3d 109, 112 (Fla. 3d DCA 2015) (“The doctrine of after-acquired title applies to mortgages.”); Rose v. Lurton Co., 111 Fla. 424, 149 So. 557, 558 (1933).
The homeowner argues that there was insufficient evidence presented to support the award of. attorney’s fees in the final judgment of foreclosure. The,appellee concedes this point, as there was no testimony from counsel as to time spent. We therefore reverse the award of attorney’s fees.
As to all other;issues raised, we affirm without further comment.
Affirmed in part; reversed in part.
Gerber, C.J., and Forst, J., concur.
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Bollettieri Resort Villas Condo. Ass'n, Inc. v. The Bank OF NEW York Mellon, 228 So. 3d 72 (Fla. 2017)…f the Fifth District Court of Appeal in Klebanoff v. Bank of New York Mellon, 228 So. 3d 167, 2017 WL 2818078 (Fla. 5th DCA June 30, 2017), and the more recent cases from the Fourth District Court of Appeal in Kebreau v. Bayview Loan Servicing, LLC, 225 So. 3d 255, 256, 2017 WL 2983999, at *1 (Fla. 4th DCA July 12, 2017), and the First District Court of Appeal in Forero v. Green Tree Servicing, LLC, 223 So. 3d 440, 445 (Fla. 1st DCA 2017), we have determined that the certified conflict has been resolved, and…
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U.S. Bank v. Diamond, 228 So. 3d 177 (Fla. 5th DCA 2017)…440, 2017 WL 2989493 (Fla. 1st DCA July 17, 2017) (holding that subsequent "defaults occurring after a stale date, but within five years of suit, were not barred by the statute of limitations); Kebreau v. Bayview Loan Servicing, LLC, No. 4D16-2010, 225 So. 3d 255, 2017 WL 2983999 (Fla. 4th DCA July 12, 2017) (same). The Florida Supreme Court has granted review on the issue in Bollettieri Resort Villas Condominium Ass’n v. Bank of N.Y. Mellon, No. SC16-1680, 2016 WL 9454216 (Fla. Nov. 2, 2016), rev’g Bolletti…
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Trilok Desai v. Bank of N.Y. Mellon, 240 So. 3d 729 (Fla. 4th DCA 2018)…t. Therefore, the note and mortgage remained enforceable by a foreclosure based on any default occurring within the statute of limitations. See Bartram, 211 So. 3d at 1012; Depicciotto, 225 So. 3d at 391-92; Kebreau v. Bayview Loan Serv., LLC, 225 So. 3d 255, 256 (Fla. 4th DCA 2017) (holding that a suit may proceed where alleged defaults fell within the five-year limitations period). Cf. Collazo v. HSBC Bank USA, N.A., 213 So. 3d 1012, 1013 (Fla. 3d DCA 2016) (reversing foreclosure judgment where pl…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Deutsche Bank Tr. Co. Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016)
- Desylvester v. The Bank OF NEW York Mellon, 219 So. 3d 1016 (Fla. 2d DCA 2017)
- Bollettieri Resort Villas Condo. Ass'n, Inc. v. The Bank OF NEW York Mellon, 198 So. 3d 1140 (Fla. 2d DCA 2016)
- Hicks v. Wells Fargo Bank, N.A., 178 So. 3d 957 (Fla. 5th DCA 2015)
- Rose v. Lurton Co., 111 Fla. 424 (Fla. 1933)
- Heartwood 2, LLC v. Shay Dori, 208 So. 3d 817 (Fla. 3d DCA 2017)
- BCML Holding LLC v. Wilmington Tr., N.A., 201 So. 3d 109 (Fla. 3d DCA 2015)
- Layne v. Layne, 74 So. 3d 161 (Fla. 1st DCA 2011)