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Bush v. Whitney Bank

Florida Court of Appeals, Fifth District

May 19, 2017

DARYL BUSH, Appellant,
v.
WHITNEY BANK, A MISSISSIPPI STATE CHARTERED BANK, FORMERLY KNOWN AS HANCOCK BANK, A MISSISSIPPI STATE CHARTERED BANK, AS ASIGNEE OF THE FDIC AS RECEIVER FOR PEOPLES FIRST COMMUNITY BANK, ETC., Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Orange County, John Marshall Kest, Judge.

          L. William Porter, III, of Bogin, Munns & Munns, P.A. of Orlando, for Appellant.

          Michael Anthony Shaw and Stephen P. Drobny of Jones Walker, LLLP, Miami, for Appellee.

          PALMER, J.

         In this breach of contract action, Daryl Bush (the borrower) appeals the final judgment of monetary damages entered by the trial court in favor of Whitney Bank (the bank). Because the trial court properly ruled that the one-year statute of limitations in section 95.11(5)(h) of the Florida Statutes (2015) did not apply to the bank's action, we affirm.

         The borrower signed a promissory note (secured by a mortgage) and delivered it to the Peoples First Community Bank. The note was later transferred to Hancock Bank. Subsequently, the borrower requested a short sale which Hancock Bank approved. In the letter approving the short sale, Hancock Bank wrote:

15. The "shortfall" due to Hancock Bank is estimated at $235, 093, 80. The Borrower(s) will continue to be obligated to pay Hancock Bank the shortfall amount (outstanding loan balancing including additional charges, less net sale proceeds in [the] amount of $235.093.80).

         The borrower accepted the terms of the letter, and the short sale occurred on August 31, 2011.

         On September 19, 2015, the bank filed an action seeking to reestablish a lost note and to obtain damages for the borrower's breach of the promissory note. The borrower filed a motion to dismiss the action, alleging that the action was time barred under section 95.11(5)(h) which provides:

[a]n action to enforce a claim of a deficiency related to a note secured by a mortgage against a residential property that is a one-family to four-family dwelling unit. The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.

         In particular, he argued that section 95.11(5)(h) should be interpreted in conjunction with section 702.06 of the Florida Statutes (2015) which reads:

Deficiency decree; common law suit to recover deficiency
In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound discretion of the court; however, in the case of an owner-occupied residential property, the amount of the deficiency may not exceed the difference between the judgment amount, or in the case of a short ...

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