DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR REGISTERED HOLDERS OF LONG BEACH MORTGAGE LOAN TRUST 2006-6 ASSET-BACKED CERTIFICATES SERIES 2006-6, APPELLANT,
v.
JAMES M. MILLER, ANGELA M. MILLER A/K/A ANGELA MARIE MILLER A/K/A ANGELA MARIE HAYES, ALL AMERICAN MANAGEMENT, FAIRWINDS CREDIT UNION, STATE OF FLORIDA, SEMINOLE COUNTY, FLORIDA, APPELLEES.
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The court held that a foreclosure complaint alleging a continuous state of default is not time-barred if it encompasses payments within the five years preceding the filing of the complaint.
The Bank filed a foreclosure complaint alleging default on mortgage payments. The Millers moved for summary judgment, arguing the statute of limitatio…
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Deutsche Bank National Trust Company ("the Bank") appeals an order granting final summary judgment in favor of James and Angela Miller and dismissing its complaint based on the statute of limitations. We reverse.
In May 2013, the Bank filed a foreclosure complaint against the Millers, alleging that the Millers defaulted on their February 1, 2007 mortgage payment and all subsequent payments. The Millers successfully moved for summary judgment, arguing that the statute of limitations barred the Bank's claim based on the default date alleged in the complaint. See § 95.11(2)(c), Fla. Stat. (2013) (providing five-year statute of limitations period for foreclosure actions).
The trial court erred in granting the motion for summary judgment based on the statute of limitations. The Bank's complaint was not time-barred because the Bank alleged a continuous 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 further proceedings.
REVERSED and REMANDED.
COHEN, C.J., PALMER and BERGER, 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)…ate of default by alleging an initial default for the failure to make "the 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…
Authorities Cited
- Klebanoff v. Bank OF NEW York Mellon, 228 So. 3d 167 (Fla. 5th DCA 2017)
- U.S. Bank v. Diamond, 228 So. 3d 177 (Fla. 5th DCA 2017)
- Bank OF NEW York Mellon v. Stallbaum, 230 So. 3d 1271 (Fla. 5th DCA 2017)
- Deutsche Bank v. Miller, 239 So. 3d 789 (Fla. 5th DCA 2018)