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Velden v. Nationstar Mortgage, LLC

Florida Court of Appeals, Fifth District

January 12, 2018

NEIL VELDEN, Appellant,
v.
NATIONSTAR MORTGAGE, LLC, 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 E. Jordan, Judge.

          Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellant. Nancy M. Wallace, of Akerman LLP,

          Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, Celia C. Falzone, of Akerman LLP, Jacksonville and Eric M. Levine, of Akerman LLP, West Palm Beach, and Charles P. Gufford, of McCalla Raymer Pierce, LLC, Orlando, for Appellee.

          PALMER, J.

         Neil Velden appeals the final judgment of foreclosure entered by the trial court in favor of Nationstar Mortgage, LLC (Nationstar). We affirm in all respects except to the extent the final judgment includes some payments barred by the statute of limitations.

          In July 2014, Freedom Mortgage Corporation (Freedom) filed a mortgage foreclosure complaint against Velden, alleging that Velden failed to make his February 1, 2009 mortgage payment as well as all subsequent payments. Thereafter, Nationstar was substituted for Freedom. After trial, the court entered a final judgment of foreclosure in favor of Nationstar, awarding the full amount of the unpaid note plus interest, dating back to January 2009.

         Velden asserts that the trial court erred in denying his motion for the entry of an involuntary dismissal because Freedom's complaint was filed more than five years after the date of his first missed payment. We disagree.

         Section 95.11(2)(c) of the Florida Statutes (2014) provides that an action to foreclose a mortgage shall be commenced within five years. In Klebanoff v. Bank of N.Y.Mellon, 228 So.3d 167, 168-69 (Fla. 5th DCA 2017), we affirmed a final judgment of foreclosure, rejecting the same statute of limitations argument raised here:

Because the Bank alleged and proved missed payments within the five years prior to the filing of its complaint, its action was not barred by the statute of limitations.

See also U.S. Bank, N.A. v. Diamond, 228 So.3d 177, 178 (Fla. 5th DCA 2017).

         Velden further argues that the trial court erred in awarding Nationstar amounts which accrued beyond the five-year limitations period. We agree.

         In U.S. Bank National Association v. Bertram, 140 So.3d 1007 (Fla. 5th DCA 2014), affirmed, 211 So.3d 1009 (Fla. 2016), we quoted with approval from the federal district court case of Kaan v. Wells Fargo Bank, N.A., 981 F.Supp.2d 1271, 1274 (S. D. Fla. 2013):

While any claims relating to individual defaults that are now more than five years old may be subject to the statute of limitations, each payment that is less than five years old . . . created a basis for a ...

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