U.S. BANK, N.A., Successor Trustee to LaSalle Bank National Association, on behalf of the holders of Bear Stearns Asset Backed Securities I Trust 2005-HE7, Asset-Backed Certificates Series 2005-HE7, Appellant,
ANA GONZALES; ANGEL CASIANO; and SUMMERFIELD MASTER COMMUNITY ASSOCIATION, INC., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Mark D. Kiser
and Paul L. Huey, Judges.
J. Knight and Jacqueline Simms-Petredis of Burr & Forman
LLP, Tampa, for Appellant.
appearance for Appellees.
Bank, N.A., Successor Trustee to LaSalle Bank National
Association, on behalf of the holders of Bear Stearns Asset
Backed Securities I Trust 2005-HE7, Asset-Backed Certificate
Series 2005-HE7 (U.S. Bank), appeals from the order
dismissing with prejudice its mortgage foreclosure action
against Ana Gonzales and Angel Casiano (the homeowners),
arguing that the trial court erred in determining that the
complaint was barred by the statute of
limitations. We agree and reverse.
February 25, 2016, U.S. Bank filed an action against the
homeowners to enforce a promissory note and foreclose a
mortgage, alleging that the homeowners defaulted on the note
and mortgage by failing to make "the payment due for
August 1, 2010, and all subsequent payments." The
homeowners filed a motion to dismiss the foreclosure
complaint, alleging, in relevant part, that the complaint
failed to state a cause of action because it had not been
filed within five years of the initial default date alleged.
See § 95.11(2)(c), Fla. Stat.
(2010). The trial court entered an order granting
the motion to dismiss based solely on the finding that the
action was barred by the statute of limitations and directed
the clerk to close the file. In dismissing the complaint, the
trial court relied upon Hicks v. Wells Fargo Bank,
N.A., 178 So.3d 957 (Fla. 5th DCA 2015). Despite the
fact that the complaint in Hicks alleged a
continuing state of default-just like the complaint in this
case-the Fifth District held that the complaint should have
been dismissed because the initial default date alleged in
the complaint occurred outside of the five-year statute of
limitations. Id. at 959. However, as clarified in
Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 168
(Fla. 5th DCA 2017), the parties in Hicks
"proceeded to trial on stipulated facts that referenced
only the initial default." Hicks is therefore
distinguishable from this case.
court has repeatedly held, alleging "a continuing state
of default at the time of the filing of the complaint [is]
sufficient to satisfy the . . . statute of limitations."
Huntington Nat'l Bank v. Watters, 228 So.3d 595,
596 (Fla. 2d DCA 2017) (alteration in original) (quoting
Desylvester v. Bank of N.Y. Mellon ex rel. Holders of
Alt. Loan Tr. 2005-62, Mortg. Pass-Through Certificates
Series 2005-62, 219 So.3d 1016, 1020 (Fla. 2d DCA
2017)); accord Bollettieri Resort Villas Condo. Ass'n
v. Bank of N.Y. Mellon, 198 So.3d 1140, 1142 (Fla. 2d
DCA 2016), review dismissed, 228 So.3d 72 (Fla.
2017). Although the initial alleged default date of August 1,
2010, occurred more than five years prior to the filing of
the foreclosure complaint on February 25, 2016, because the
statute of limitations runs from the date of each new default
and the complaint alleged a continuing state of default since
August 1, 2010, U.S. Bank's complaint was sufficient to
establish that foreclosure could be based on any default that
was within the statutory period. See Bollettieri Resort
Villas Condo. Ass'n, 198 So.3d at 1142. Because U.S.
Bank's foreclosure action was not time-barred, we reverse
the order of dismissal and remand for further
Reversed and remanded.
CASANUEVA and SILBERMAN, JJ., Concur.
The homeowners did not participate in
U.S. Bank contends that a motion to
dismiss was not the proper vehicle to raise the statute of
limitations defense in this case. It is true that
"[o]rdinarily, the statute of limitations is an
affirmative defense; however, an affirmative defense
appearing on the face of a prior pleading may be asserted as
a ground for a motion to dismiss under Florida Rule of Civil
Procedure 1.140(b)." Hofer v. Ross, 481 So.2d
939, 940 (Fla. 2d DCA 1985) (citing Fla. R. Civ. P.
1.110(d)); accord Williams v. City of Jacksonville,
191 So.3d 925, 927-28 (Fla. 1st DCA 2016). Because the
applicability of the five-year statute of limitations could
be "conclusively established by the facts pleaded in the
[foreclosure] complaint, " it was properly "alleged
as [a] ground for [the] motion to dismiss" in this
case. See Levine, Zweibach, Davis, P.A. v. Levine,
734 So.2d 1191, 1195 (Fla. 2d DCA 1999); compare Gen.
Motors Acceptance Corp. v. Thornberry, 629 So.2d 292,
293 (Fla. 3d DCA 1993) ("Where, as here, the statute of
limitations defense appears on the face of the complaint, it
is permissible to assert the statute of limitations defense
by motion to dismiss."), with Wishnatzki v. Coffman
Constr., Inc., 884 So.2d 282, 285 (Fla. 2d DCA 2004)
("Considering the complaint on its face, we cannot say
as a matter of law that the limitations period commenced ...