THE BANK OF NEW YORK MELLON, AS TRUSTEE, ETC., APPELLANT,
v.
CARLECHE ARNOUX, ETC., APPELLEE.

Fla. 3d DCA | 2018-10-31
Nos. 3D18-313; 3D16-2064
Before SUAREZ, EMAS and FERNANDEZ, JJ.
257 So. 3d 1179 Florida District Court of Appeal, Third District (2018)

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Holding

The court held that the foreclosure action was not barred by the statute of limitations, as the complaint alleged a series of defaults continuing to the filing date.


Headnotes

[1] A foreclosure action is not barred by the statute of limitations when the complaint alleges a default on a specific payment and all subsequent payments, even if the initi…

[2] The "tipsy coachman" doctrine, allowing affirmance for a "right reason" not relied upon by the trial court, does not apply to grounds not raised in a motion for summary j…

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Facts & Procedural History

The Bank filed a foreclosure action, which was dismissed. A second action was filed, alleging default on a specific date and all subsequent payments. …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this appeal, The Bank of New York Mellon ("the Bank") appeals a final summary judgment and involuntary dismissal of a foreclosure action entered in favor of defendant below, Carl Arnoux.1 We reverse because the trial court erred in concluding that the Bank's action was barred by the statute of limitations.

On September 1, 2007, the Bank filed a foreclosure action against Arnoux, alleging a default date of April 1, 2007. That initial foreclosure action was voluntarily dismissed on April 12, 2012. Thereafter, the *1180Bank filed the instant foreclosure action on February 28, 2013, alleging in its complaint that Arnoux had "defaulted under the Note and Mortgage by failing to pay the full payment due February 1, 2008, and all subsequent payments." Arnoux answered the complaint and raised, as an affirmative defense, the expiration of the five-year statute of limitations. See § 95.11(2)(c), Fla. Stat. (2013).

Thereafter, and following a variety of motions filed by both sides, the trial court granted Arnoux's motion for summary judgment and involuntarily dismissed the action, concluding that it was barred by the expiration of the five-year statute of limitations.

We reverse. The complaint in the instant foreclosure action alleged that Arnoux had "defaulted under the Note and Mortgage by failing to pay the full payment due February 1, 2008, and all subsequent payments " (emphasis added). It is now well-settled in this district2 that the action was not barred by the statute of limitations, and the trial court erred in entering final summary judgment in favor of Arnoux and involuntarily dismissing the Bank's action. See Bank of New York Mellon Corp. v. Anton, 230 So.3d 502, 504 (Fla. 3d DCA 2017) (holding: "Given the allegation that Anton failed to make all subsequent payments, the mere fact that the second foreclosure complaint alleged the same Initial default date as that alleged in the first foreclosure complaint (i.e., August 1, 2008), is of no moment: by alleging that Anton failed to make the payment due on August 1, 2008 and all subsequent payments,' the action alleged a series of defaults by Anton on all payments due beginning on August 1, 2008 and continuing up to the date of the filing of the second foreclosure action on December 19, 2014"); Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825, 826 (Fla. 3d DCA 2016) (holding: "Because the Bank's complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments , and the action was filed within the five years of default payment ... the action survived the asserted statute of limitations bar"); Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938, 945 (Fla. 3d DCA 2016) (en banc) (holding that, even if the alleged initial default date was more than five years before the complaint was filed, the action was not barred by the statute of limitations where "the bank alleged the failure to pay the October 1, 2006 installment payment 'and all subsequent payments.' ") See also Gonzalez v. Federal Nat'l Mortg. Ass'n., 43 Fla. L. Weekly D1739 (Fla. 3d DCA August 1, 2018) ; U.S. Bank, N.A. v. Ramirez, 43 Fla. L. Weekly D1650, 252 So.3d 781 (Fla. 3d DCA July 25, 2018) ; U.S. Bank, N.A. v. Amaya, 43 Fla. L. Weekly D1637 (Fla. 3d DCA July 25, 2018) ; Wells Fargo Bank, N.A. v. Rendon, 245 So.3d 917 (Fla. 3d DCA 2018).3

*1181We therefore reverse the final summary judgment and involuntary dismissal and remand for further proceedings consistent with this opinion.


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