FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, John Marshall Kest,
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.
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.
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).
borrower accepted the terms of the letter, and the short sale
occurred on August 31, 2011.
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
[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.
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 ...