U.S. BANK, N.A., SUCCESSOR TRUSTEE TO BANK OF AMERICA, NA, SUCCESSOR IN INTEREST TO LASALLE BANK, NA AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE WASHINGTON MUTUAL MORTGAGE, ETC., Appellant,
DAVID M. DIAMOND, JANET DIAMOND AND SUMMER PLACE CONDOMINIUM ASSOCIATION OF BREVARD, INC., ETC., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, Lisa Davidson,
Allison Morat, of Pearson Bitman LLP, Maitland, for
Christopher Crowder, of Faro & Crowder, PA, Melbourne,
for Appellees, David M. Diamond and Janet Diamond.
appearance for other Appellee.
appeals the trial court's order dismissing its
foreclosure complaint against Appellees. The loan, as
documented by the note and mortgage, called for Appellees to
pay interest only for the first ten years before beginning to
pay off the principal. Appellant first sued to foreclose the
mortgage in 2010, alleging that Appellees failed to make the
monthly installment payment for October 2009 and that all
subsequent payments had not been made. The first foreclosure
suit was dismissed. In January 2015, Appellant filed this
second foreclosure suit regarding the same note and mortgage
against Appellees. In the second suit, Appellant alleged that
Appellees failed to make the October 2009 payment and that
all subsequent payments had not been made.
trial on this second foreclosure action, the trial court
initially entered judgment in favor of Appellant. Appellees
moved for rehearing, seeking entry of involuntary dismissal
because Appellant's complaint identified a "stale
date, " i.e., more than five years before the suit was
filed, as the date of default; therefore, they argued, it was
barred by the applicable statute of limitations, section
95.11(2)(c), Florida Statutes (2016). The trial court agreed,
granted the motion for rehearing, and entered its order
involuntarily dismissing Appellant's complaint. For the
reasons set forth below, we reverse.
recently decided Klebanoff v. Bank of N.Y. Mellon,
42 Fla.L.Weekly D1480 (Fla. 5th DCA June 30, 2017),
motion for reh'g filed, where we held that
"[b]ecause the Bank alleged and proved that the subject
mortgage was in a continuous state of default, which included
defaults within the five-year statute of limitations, its
action was not barred, even if the initial default was
alleged to have occurred more than five years prior to the
filing of the complaint." 42 Fla.L.Weekly at D1481;
accord Forero v. Green Tree Servicing, LLC, No.
1D16-2151, 2017 WL 2989493 (Fla. 1st DCA July 17, 2017)
(holding that subsequent defaults occurring after a stale
date, but within five years of suit, were not barred by the
statute of limitations); Kebreau v. Bayview Loan
Servicing, LLC, No. 4D16-2010, 2017 WL 2983999 (Fla. 4th
DCA July 12, 2017) (same). The Florida Supreme Court has
granted review on the issue in Bollettieri Resort Villas
Condominium Ass'n v. Bank of N.Y. Mellon, No.
SC16-1680, 2016 WL 9454216 (Fla. Nov. 2, 2016), rev'g
Bollettieri Resort Villas Condominium Ass'n v. Bank of
N.Y. Mellon, 198 So.3d 1140, 1142-43 (Fla. 2d DCA 2016).
instant case, Appellant alleged and proved at trial that
Appellees' default was continuing because Appellees
failed to make any mortgage payments following the initial
default date, October 2009, up to the time the second suit
was filed. As we have previously noted, every new default on
a monthly installment presents a new cause of action for
statute of limitations purposes. See U.S. Bank Nat'l
Ass'n v. Bartram, 140 So.3d 1007, 1014 (Fla. 5th DCA
2014). The Florida Supreme Court agreed with our reasoning on
this point. See Bartram v. U.S. Bank Nat'l
Ass'n, 211 So.3d 1009, 1019 (Fla. 2016).
"Therefore, with each subsequent default, the statute of
limitations runs from the date of each new default providing
the mortgagee the right, but not the obligation, to
accelerate all sums then due under the note and
we find that Appellant's claims for defaults occurring
within five years of the filing of the second foreclosure
action were not barred by the statute of limitations.
However, Appellant has agreed here, as it did in
Bartram, that it cannot recover for those
installment payment defaults that occurred more than five
years before the current action was filed. Id. at
1015. We reverse and remand to the trial court with
instructions to vacate the order dismissing the complaint and
to enter judgment in favor of Appellant, but to exclude any
defaults that occurred more than five years prior to the
filing date of the current suit, nunc ...