BANK OF NEW YORK MELLON F/K/A BANK OF NEW YORK, AS SUCCESSOR IN INTEREST TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC., BEAR STEARNS ALT-A TRUST, ETC., APPELLANT,
v.
DANIEL STALLBAUM, APPELLEE
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Bank of New York Mellon appealed a summary judgment dismissing its foreclosure complaint as time-barred under Florida's statute of limitations. The court reversed, holding that a complaint alleging a continuous state of default with defaults occurring within the limitations period is not barred, even if the initial default occurred more than five years before filing.
The court held that the foreclosure complaint was not barred by the statute of limitations because it alleged a continuous state of default that included acts of default occurring within the five-year period, and the lender could prove that the borrower failed to make mortgage payments following the initial default date up to the time the complaint was filed.
[1] A mortgage provision requiring notice of default and an opportunity to cure prior to acceleration is a condition precedent to filing a foreclosure action.
[2] A dismissal of a foreclosure action without prejudice does not require the lender to send a new default notice before filing a subsequent foreclosure action based on the…
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the core holding that continuous default allegations preclude statute of limitations dismissals
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Join FLexlaw to unlock all legal intelligenceBank filed a foreclosure complaint on March 3, 2015, alleging that the mortgage note was in default because the payment due March 1, 2010, and all sub…
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Bank of New York Mellon f/k/a Bank of New York as Successor in Interest to JP Morgan Chase Bank, N.A. as Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns Alt-A Trust, Etc. (“Bank”) appeals the trial court’s summary final judgment dismissing Bank’s foreclosure complaint based on the statute of limitations. We reverse.
In this case, the complaint, filed on March 3, 2015, alleged that the “Note and Mortgage are in default in that the payment due March 1, 2010 and all subsequent payments have not been made.” The court granted summary judgment in favor of the borrower, Daniel Stallbaum, and dismissed the complaint, ruling that the action was time-barred because the initial default occurred more than five years before 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 proved that borrower’s “default was continuing because [borrower] failed to make any mortgage payments following the initial default date” up to time complaint was filed); Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 167-69 (Fla. 5th DCA June 30, 2017) (holding that June 2014 foreclosure complaint that *1272alleged borrower defaulted on March 2009 payment and “all subsequent payments due thereafter” was not barred by statute of limitations because it alleged mortgage “was in a continuous state of default, which included defaults within the five-year statute of limitations ... even if the initial default was alleged to have occurred more than five years prior to the filing of the complaint”);1 cf. Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 958-59 (Fla. 5th DCA 2015) (holding that complaint was barred by statute of limitations even though it alleged continuous state of default because parties stipulated before trial that complaint was based solely on initial default payment that occurred outside five-year period).2
Accordingly, we reverse the entry of summary final judgment and remand for further proceedings.
'REVERSED and REMANDED.
SAWAYA and WALLIS, JJ., concur.
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U.S. Bank Nat'l Ass'n v. Vivien F. Wilson and Marc J. Wilson, 252 So. 3d 306 (Fla. 5th DCA 2018)…he payment due December 1, 2007, and all subsequent payments." Thus, the statute of limitations did not bar the complaint. Id. ; see also Deutsche Bank Nat'l Tr. Co. v. Miller , 239 So. 3d 789 (Fla. 5th DCA 2018) ; Bank of N.Y. Mellon v. Stallbaum , 230 So. 3d 1271 (Fla. 5th DCA 2017) ; U.S. Bank N.A. v. Diamond , 228 So. 3d 177, 178 (Fla. 5th DCA 2017). The Wilsons raise several alternative bases for affirmance under the "tipsy coachman" rule. See Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So. 2d 638, 64…
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Deutsche Bank Nat'l Tr. Co. v. Miller, 239 So. 3d 789 (Fla. 5th DCA 2018)…us state of default that encompassed payments within the five years preceding the filing of the complaint. See Velden v. Nationstar Mortg., LLC, 43 Fla. L. Weekly D147, --- So. 3d ---- (Fla. 5th DCA Jan. 12, 2018) ; Bank of N.Y. Mellon v. Stallbaum, 230 So. 3d 1271, 1271 (Fla. 5th DCA 2017) ; U.S. Bank N.A. v. Diamond, 228 So. 3d 177, 178 (Fla. 5th DCA 2017) ; Klebanoff v. Bank of N.Y. Mellon, 228 So. 3d 167, 168 (Fla. 5th DCA 2017). Accordingly, we reverse the entry of final summary judgment and remand for…
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Deutsche Bank Nat'l Tr. Co. as Tr. FOR First Franklin Mortg. Loan Tr. 2006-FF16 v. Green, 253 So. 3d 682 (Fla. 5th DCA 2018)…eclosure complaint, July 1, 2010, was within the five years prior to the filing of its complaint on June 30, 2015, the action was not barred by the statute of limitations, and it was error to conclude otherwise. See Bank of N.Y. Mellon v. Stallbaum, 230 So. 3d 1271, 1271 (Fla. 5th DCA 2017) (concluding that where complaint alleged a continuous state of default that included acts of default occurring within five-year period, statute of limitations did not bar complaint); Klebanoff v. Bank of N.Y. Mellon, 228 So…
Previewing 3 of 7 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)
- Hicks v. Wells Fargo Bank, N.A., 178 So. 3d 957 (Fla. 5th DCA 2015)
- Klebanoff v. Bank OF NEW York Mellon, 228 So. 3d 167 (Fla. 5th DCA 2017)
- The Bank OF NEW York Mellon Corp. v. Anton, 230 So. 3d 502 (Fla. 3d DCA 2017)
- U.S. Bank v. Diamond, 228 So. 3d 177 (Fla. 5th DCA 2017)