U.S. Bank National Association, as Trustee for Lehman XS Trust Mortgage Pass-Through Certificates, Series 2007-16N, Appellant,
Renee Morelli, a/k/a Renee M. Izquierdo and Moses Linen, Lakes of the Meadow Recovery, Inc., et al., Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County No.
14-19576, Barbara Areces, Judge.
Law Group, PLLC, and Shawn Taylor (Fort Lauderdale), for
Law, P.A., and Michael L. Cotzen, for appellee Lakes of the
Meadow Recovery, Inc.
ROTHENBERG, C.J., and FERNANDEZ, and LINDSEY, JJ.
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.
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.
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. 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.
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. 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
Deutsche Bank Trust Co. Americas v. Beauvais (en banc)
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 ...