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U.S. Bank National Association v. Morelli

Florida Court of Appeals, Third District

June 6, 2018

U.S. Bank National Association, as Trustee for Lehman XS Trust Mortgage Pass-Through Certificates, Series 2007-16N, Appellant,
v.
Renee Morelli, a/k/a Renee M. Izquierdo and Moses Linen, Lakes of the Meadow Recovery, Inc., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County No. 14-19576, Barbara Areces, Judge.

          DeLuca Law Group, PLLC, and Shawn Taylor (Fort Lauderdale), for appellant.

          Cotzen Law, P.A., and Michael L. Cotzen, for appellee Lakes of the Meadow Recovery, Inc.

          Before ROTHENBERG, C.J., and FERNANDEZ, and LINDSEY, JJ.

          LINDSEY, J.

         U.S. Bank National Association, as Trustee for Lehman XS Trust Mortgage Pass-Through Certificates, Series 2007-16N, appeals the trial court's dismissal of U.S. Bank's foreclosure complaint finding it was barred by the applicable five-year statute of limitations pursuant to section 95.11(2)(c), Florida Statutes (2014). Because under current law it was not, we reverse.

         I. BACKGROUND

         In February 2009, Aurora Loan Services, LLC filed a complaint to foreclose a mortgage on real property then-owned by Renee Morelli and Moses Linen. In its complaint, Aurora alleged that there was "a default under the terms of the note and mortgage for the October 1, 2008 payment and all payments due thereafter." (Emphasis added). However, that complaint was dismissed without prejudice on May 23, 2011 for failure to appear for trial.

         On July 28, 2014, U.S. Bank, as the then-holder of the note and mortgage, filed a verified complaint to foreclose on the same real property.[1] U.S. Bank alleged that "Defendant(s) has defaulted under the Note and Mortgage by failing to pay the payment due October 1, 2008 and all subsequent payments." (Emphasis added). The trial court concluded, based on Collazo v. HSBC Bank USA, N.A., that because U.S. Bank asserted a payment default date of October 1, 2008, more than five years prior to the July 28, 2014 filing of the underlying foreclosure complaint, U.S. Bank's action was barred by the statute of limitations. 213 So.3d 1012 (Fla. 3d DCA 2016). In accordance therewith, the trial court entered the order of dismissal on January 5, 2017, from which this timely appeal follows.

         II. ANALYSIS

         While the relevant and applicable case law in this area has recently been settled, it was still somewhat developing just before and after the trial court entered its dismissal order.[2] This Court issued our decision in Deutsche Bank and Trust Co. Americas v. Beauvais on April 13, 2016. 188 So.3d 938 (Fla. 3d DCA 2016) (en banc). We also issued our decisions in Collazo and Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825 (Fla. 3d DCA 2016) on October 13, 2016. The Florida Supreme Court issued its opinion in Bartram v. U.S. Bank, N.A., 211 So.3d 1009 (Fla. 2016) on November 3, 2016, and declined review in Bollettieri Resort Villas Condominium Ass'n v. Bank of New York Mellon, 228 So.3d 72 (Fla. 2017) on October 12, 2017. Finally, we issued our decision in Wells Fargo Bank, N.A. v. Rendon, 2018 WL 1832582, at *1 (Fla. 3d DCA Apr. 18, 2018), on April 18, 2018.

         A. Deutsche Bank Trust Co. Americas v. Beauvais (en banc)

         In Beauvais, Deutsche Bank's predecessor in interest filed a complaint on January 23, 2007 to foreclose on real property owned by Beauvais, alleging that Beauvais defaulted on a mortgage in failing to make a September 1, 2006 payment and accelerating payment of the balance due on the note and mortgage. 188 So.3d at 940-41. However, the action was dismissed without prejudice on December 6, 2010, for failure to appear at a case management conference. Id. at 941. Subsequently, on December 18, 2012, Deutsche Bank filed another foreclosure ...


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