U.S. BANK, N.A., SUCCESSOR TRUSTEE TO BANK OF AMERICA, NA, SUCCESSOR IN INTEREST TO LASALLE BANK, NA AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE WASHINGTON MUTUAL MORTGAGE, ETC., APPELLANT,
v.
DAVID M. DIAMOND, JANET DIAMOND AND SUMMER PLACE CONDOMINIUM ASSOCIATION OF BREVARD, INC., ETC., APPELLEES
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U.S. Bank appealed a trial court's dismissal of a foreclosure complaint based on the statute of limitations. The court held that a mortgage's continuous default state, including defaults within five years of suit, is not barred by the statute of limitations even if the initial default occurred more than five years prior, and reversed the dismissal with instructions to enter judgment while excluding older defaults.
The court reversed the dismissal, holding that because the mortgage was in continuous default with unpaid installments occurring within five years of suit, the action was not barred by the statute of limitations. Defaults occurring more than five years prior to suit are excluded from recovery, but each subsequent monthly default presents a new cause of action for statute of limitations purposes.
[1] A foreclosure action is not barred by the statute of limitations if the plaintiff alleges and proves a continuous state of default, including defaults within the five-yea…
[2] Each subsequent default on a monthly installment payment for a mortgage presents a new cause of action for statute of limitations purposes.
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Join FLexlaw to unlock all legal intelligence“because the Bank alleged and proved that the subject mortgage was in a continuous state of default, which included defaults within the five-year statute of limitations, its action was not barred, even if the initial default was alleged to have occurred more than five years prior to the filing of the complaint”
Establishes the key holding that continuous default with timely defaults bars statute of limitations defense
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Join FLexlaw to unlock all legal intelligenceU.S. Bank filed a second foreclosure action in January 2015 against the Diamonds regarding a mortgage note requiring interest-only payments for the fi…
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Appellant appeals the trial court’s order dismissing its foreclosure . complaint against Appellees. The loan, as documented by the note and mortgage, called for Appellees to pay interest only for. the first ten years before beginning to pay off the principal. Appellant first sued to foreclose the mortgage in 2010, alleging that Appel-lees failed to make the monthly installment payment for October 2009 and that all subsequent payments had not been made. The first foreclosure suit was dismissed. In January 2015, Appellant filed this second foreclosure suit regarding the same note and mortgage against Appellees. In the second suit, Appellant alleged that Appel-lees failed to make the October 2009 payment and that all subsequent payments had not been made.
After trial on this second foreclosure action, • the trial court initially entered judgment in favor of Appellant. Appellees moved for rehearing, seeking entry of involuntary dismissal because Appellant’s complaint identified a “stale date,” i.e., more than five years before the suit was filed, as the date of default; therefore, they argued, it was barred by the applicable statute of limitations, section 95.11(2)(c), Florida Statutes (2016), The trial CQurt agreed, granted the motion for rehearing, and entered its order involuntarily dismissing Appellant’s complaint. For the reasons set forth below, we reverse.
We recently decided Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 42 Fla. L. Weekly D1480 (Fla. 5th DCA June 30, 2017), motion for reh’g filed, where we held that “[bjecause the Bank alleged and proved that the subject mortgage was in a continuous state of default, which included defaults within the five-year statute of limitations, its action was not barred, even if the initial default was alleged to have occurred more than five years prior to the filing of the complaint.” 228 So.3d at 169, 42 Fla. L. Weekly at D1481; accord Forero v. Green Tree Servicing, LLC, No. 1D16-2151, 228 So.3d 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 Bollettieri Resort Villas Condominium Ass’n v. Bank of N.Y. Mellon, 198 So.3d 1140, 1142-43 (Fla. 2d DCA 2016).
In the . instant case, Appellant alleged and proved at trial that Appellees’ default was continuing because Appellees failed to make any mortgage payments following the initial.default date, October 2009, up to the-time the second suit was filed. As we have previously noted, every new default on a monthly installment presénts a new cause of action for statute. of limitations purposes. See U.S. Bank Nat’l Ass’n v. Bartram, 140 So.3d 1007, 1014 (Fla. 5th DCA 2014). The Florida Supreme Court agreed with our reasoning on this point. See Bartram v. U.S. Bank Nat’l Ass’n, 211 So.3d 1009, 1019 (Fla. 2016). “Therefore, with each subsequent default, the-statute of limitations runs from the date of. each new default providing the mortgagee the right, but not the obligation, to accelerate *179all sums then due under the note and mortgage.” Id.
Accordingly, we find that Appellant’s claims for defaults occurring within five years of the filing of the second foreclosure action were not barred by the statute of limitations. However, Appellant has agreed here, as it did in Batkram, that it cannot recover for those installment payment defaults that occurred more than five years before the current action was filed. Id. at 1015. We reverse and remand to the trial court with instructions to vacate the order dismissing the complaint and to enter judgment in favor of Appellant) but to exclude any defaults that occurred more than five years prior to the filing date of the current suit, nunc pro tunc to the original date judgment was entered. Appellant’s motion for appellate attorney’s fees is granted, with the amount to be determined by the trial court.
REVERSED AND REMANDED WITH INSTRUCTIONS.
ORFINGER and EVANDER, JJ., concur.
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Bank OF NEW York Mellon v. Stallbaum, 230 So. 3d 1271 (Fla. 5th DCA 2017)…e the'foreclosure action was filed. Because the complaint alleged a continuous state of default that included acts of default occurring within the five-year period, the statute of limitations did not bar the complaint. See U.S. Bank N.A. v. Diamond, 228 So. 3d 177, 178 (Fla. 5th DCA Sept. 1, 2017) (holding that January 2015 foreclosure complaint, alleging that borrower defaulted on October 2009 payment and that “all subsequent payments had not been made” was not barred by statute of limitations as lender prov…
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Velden v. Nationstar Mortg., LLC, 234 So. 3d 850 (Fla. 5th DCA 2018)…tute of limitations argument raised here: Because the Bank alleged and proved missed payments within the five years prior to the filing of its complaint, its action was not barred by the statute of limitations. See also U.S. Bank, N.A. v. Diamond, 228 So. 3d 177, 178 (Fla. 5th DCA 2017). Velden further argues that the trial court erred in awarding Nationstar amounts which accrued beyond the five-year limitations period. We agree. In U.S. Bank National Association v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA…
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Bank of Am., N.A. v. Graybush, 253 So. 3d 1188 (Fla. 4th DCA 2018)
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bartram v. U.S. Bank Nat'l Ass'n, 211 So. 3d 1009 (Fla. 2016)
- U.S. Bank Nat'l Ass'n v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014)
- Bollettieri Resort Villas Condo. Ass'n, Inc. v. The Bank OF NEW York Mellon, 198 So. 3d 1140 (Fla. 2d DCA 2016)
- Klebanoff v. Bank OF NEW York Mellon, 228 So. 3d 167 (Fla. 5th DCA 2017)
- Forero v. Green Tree Servicing, LLC, 223 So. 3d 440 (Fla. 1st DCA 2017)
- Kebreau v. Bayview Loan Servicing, LLC, 225 So. 3d 255 (Fla. 4th DCA 2017)