U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF CITIGROUP MORTGAGE LOAN TRUST 2007-AHL2, ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-AHL2, ETC., APPELLANT,
v.
VIVIEN F. WILSON AND MARC J. WILSON, APPELLEES.

Fla. 5th DCA | 2018-07-20
No. Case No. 5D17-2130
252 So. 3d 306 Florida District Court of Appeal, Fifth District (2018) Positive Treatment
Cited by 3 cases

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Holding

A complaint alleging a continuous state of default, including acts within the limitations period, is not barred by the statute of limitations.


Headnotes

[1] A complaint alleging a continuous state of default, which includes acts of default within the five-year period preceding the filing of the complaint, is not barred by the…

[2] A plaintiff is not required to file a reply to an affirmative defense when no additional facts are necessary to avoid the defense, as the defense is deemed denied.

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Facts & Procedural History

The Wilsons defaulted on a mortgage payment in December 2007. The Bank filed a foreclosure complaint in September 2014, alleging a continuous default.…

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Opinion of the Court
JOLLEY, M.G., Associate Judge.

JOLLEY, M.G., Associate Judge.

U.S. Bank National Association ("the Bank") appeals the final summary judgment entered in favor of Vivien and Marc Wilson ("the Wilsons"). We reverse and remand.

On October 17, 2006, the Wilsons signed a promissory note secured by a mortgage in exchange for a loan of $164,000. In December 2007, the Wilsons failed to make the monthly payment due on the note. Following two dismissed foreclosure actions, the Bank filed the instant complaint on September 3, 2014, alleging that it had "not been paid the payment due December 1, 2007, and all subsequent payments, which has resulted in a default of the note and mortgage."

The Wilsons answered the complaint and raised affirmative defenses, including the expiration of the statute of limitations under section 95.11(2)(c) of the Florida Statutes (2014). The Bank did not file a *308reply. The Wilsons moved for summary judgment, arguing that the complaint, filed on September 3, 2014, was based upon a single default on December 1, 2007, well-beyond the five-year statute of limitations. The trial court granted the motion and entered a final summary judgment.

The Bank contends that the trial court erred in entering a final summary judgment based upon the expiration of the statute of limitations because the pleadings alleged a continuous state of default. We agree.

A complaint alleging a continuous state of default, which includes acts of default within the five-year period preceding the filing of the complaint, is not barred by the statute of limitations. U.S. Bank Nat'l Ass'n for Lehman XS Tr. Mortg. Pass-Through Certificates, Series 2007-16N v. Morelli , 43 Fla. L. Weekly D1295, 249 So.3d 717, 2018 WL 2708699 (Fla. 3d DCA June 6, 2018). Here, the complaint sufficiently alleged a continuous state 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" rule. See Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 645 (Fla. 1999) (allowing the appellate court to affirm if the trial court reached the right result, but for the wrong reason, so long as "there is any basis which would support" the trial court's ruling). Only one of these arguments merits discussion: whether the summary judgment may be affirmed because the Bank failed to file a reply to avoid the affirmative defense of statute of limitations.

Florida Rule of Civil Procedure 1.100(a) provides that, if an answer contains an affirmative defense and the plaintiff seeks to avoid it, the plaintiff must file a reply on the avoidance. However, avoiding an affirmative defense is different from a denial of that affirmative defense, and a denial is neither required nor permitted by the rules. Kitchen v. Kitchen , 404 So.2d 203, 205 (Fla. 2d DCA 1981). Instead, a reply to an affirmative defense is required only to allege new facts which may be sufficient to avoid the legal effect of the facts contained in the affirmative defense. Abston v. Bryan , 519 So.2d 1125, 1127 (Fla. 5th DCA 1988) ; Kitchen , 404 So.2d at 205. "When a defendant files affirmative defenses and the plaintiff does not reply, the affirmative defenses are deemed denied and therefore false." Roman v. Bogle , 113 So.3d 1011, 1014 (Fla. 5th DCA 2013), rev. denied 130 So.3d 691 (Fla. 2013) ; see also Fla. R. Civ. P. 1.110(e) (an averment in a pleading "to which no responsive pleading is required or permitted shall be taken as denied or avoided"); Genuinely Loving Childcare, LLC v. Bre Mariner Conway Crossings, LLC , 209 So.3d 622, 625 (Fla. 5th DCA 2017) ; Frisbie v. Carolina Cas. Ins. Co. , 162 So.3d 1079, 1080-81 (Fla. 5th DCA 2015) ; Hertz Commercial Leasing Corp. v. Seebeck , 399 So.2d 1110, 1111 (Fla. 5th DCA 1981).

Here, the complaint sufficiently alleged a continuous state of default. The Bank was not required to file a reply because no additional facts were necessary to address the statute of limitation defense, and the defense was thus denied. Kitchen, 404 So.2d at 205. Cf. Frisbie , 162 So.3d at 1080-81 ("Here, because Appellee raised the issue of unclean hands as an avoidance *309of Appellants' two affirmative defenses, Appellee should have pleaded the issue in a reply ...."). Therefore, the Wilsons cannot rely upon the failure of the Bank to file a reply as a basis for this Court to affirm the final summary judgment under the "tipsy coachman" rule.

Accordingly, we reverse the entry of the final summary judgment and remand for further proceedings.

REVERSED AND REMANDED.

TORPY and BERGER, JJ., concur.


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Citator

Cited By

  • …3 (Fla. 4th DCA 2012)). When a plaintiff seeks to deny an affirmative defense, a “denial is neither required nor permitted by the rules” of civil procedure. U.S. Bank Nat’l Assoc. for Registered Holders of Citigroup Mortg. Loan Tr. v. Wilson, 252 So. 3d 306, 308 (Fla. 5th DCA 2018). Rather, Florida Rule Civil Procedure 1.110(e) provides an automatic denial of every allegation of an affirmative defense so that “[w]hen a defendant files affirmative defenses and the plaintiff does not reply, the affir…

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