U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF CITIGROUP MORTGAGE LOAN TRUST 2007-AHL2, ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2007-AHL2, ETC., Appellant,
VIVIEN F. WILSON AND MARC J. WILSON, 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 and Meghan Keane, of Pearson Bitman LLP,
Maitland, for Appellant.
Christopher Crowder, of Faro & Crowder, P.A., Melbourne,
JOLLEY, M.G., ASSOCIATE JUDGE.
Bank National Association ("the Bank") appeals the
final summary judgment entered in favor of Vivien and Marc
Wilson ("the Wilsons"). We reverse and remand.
October 17, 2006, the Wilsons signed a promissory note
secured by a mortgage in exchange for a loan of $164,000. In
December 2007, the Wilsons failed to make the monthly payment
due on the note. Following two dismissed foreclosure actions,
the Bank filed the instant complaint on September 3, 2014,
alleging that it had "not been paid the payment due
December 1, 2007, and all subsequent payments, which has
resulted in a default of the note and mortgage."
Wilsons answered the complaint and raised affirmative
defenses, including the expiration of the statute of
limitations under section 95.11(2)(c) of the Florida Statutes
(2014). The Bank did not file a reply. The Wilsons moved for
summary judgment, arguing that the complaint, filed on
September 3, 2014, was based upon a single default on
December 1, 2007, well-beyond the five-year statute of
limitations. The trial court granted the motion and entered a
final summary judgment.
Bank contends that the trial court erred in entering a final
summary judgment based upon the expiration of the statute of
limitations because the pleadings alleged a continuous state
of default. We agree.
complaint alleging a continuous state of default, which
includes acts of default within the five-year period
preceding the filing of the complaint, is not barred by the
statute of limitations. U.S. Bank Nat'l Ass'n for
Lehman XS Tr. Mortg. Pass-Through Certificates, Series
2007-16N v. Morelli, 43 Fla. L. Weekly D1295 (Fla. 3d
DCA June 6, 2018). Here, the complaint sufficiently alleged a
continuous state of default by alleging an initial default
for the failure to make "the payment due December 1,
2007, and all subsequent payments." Thus, the statute of
limitations did not bar the complaint. Id.; see
also Deutsche Bank Nat'l Tr. Co. v. Miller, 239 So.
3d 239 (Fla. 5th DCA 2018); Bank of N.Y. Mellon v.
Stallbaum, 230 So. 3d 1271 (Fla. 5th DCA 2018); U.S.
Bank N.A. v. Diamond, 228 So. 3d 177, 178 (Fla. 5th DCA
Wilsons raise several alternative bases for affirmance under
the "tipsy coachman" rule. See Dade Cty. Sch.
Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla.
1999) (allowing the appellate court to affirm if the trial
court reached the right result, but for the wrong reason, so
long as "there is any basis which would support"
the trial court's ruling). Only one of these arguments
merits discussion: whether the summary judgment may be
affirmed because the Bank failed to file a reply to avoid the
affirmative defense of statute of limitations.
Rule of Civil Procedure 1.100(a) provides that, if an answer
contains an affirmative defense and the plaintiff seeks to
avoid it, the plaintiff must file a reply on the avoidance.
However, avoiding an affirmative defense is different from a
denial of that affirmative defense, and a denial is neither
required nor permitted by the rules. Kitchen v.
Kitchen, 404 So. 2d 203');">404 So. 2d 203, 205 (Fla. 2d DCA 1981).
Instead, a reply to an affirmative defense is required only
to allege new facts which may be sufficient to avoid the
legal effect of the facts contained in the affirmative
defense. Abston v. Bryan, 519 So. 2d 1125, 1127
(Fla. 5th DCA 1988); Kitchen, 404 So. 2d at 205.
"When a defendant files affirmative defenses and the
plaintiff does not reply, the affirmative defenses are deemed
denied and therefore false." Roman v. Bogle,
113 So. 3d 1011, 1014 (Fla. 5th DCA 2013), rev.
denied 130 So. 3d 691 (Fla. 2013); see also
Fla. R. Civ. P. 1.110(e) (an averment in a pleading "to
which no responsive pleading is required or permitted shall
be taken as denied or avoided"); Genuinely Loving
Childcare, LLC v. Bre Mariner Conway Crossings, LLC, 209
So. 3d 622, 625 (Fla. 5th DCA 2017); Frisbie v. Carolina
Cas. Ins. Co., 162 So. 3d 1079');">162 So. 3d 1079, 1080–81 (Fla. 5th
DCA 2015); Hertz Commercial Leasing Corp. v.
Seebeck, 399 So. 2d 1110, 1111 (Fla. 5th DCA 1981).
the complaint sufficiently alleged a continuous state of
default. The Bank was not required to file a reply because no
additional facts were necessary to address the statute of
limitation defense, and the defense was thus denied.
Kitchen,404 So. 2d at 205. Cf. Frisbie,
162 So. 3d at 1080-81 ("Here, because Appellee raised
the issue of unclean hands as an avoidance of Appellants'
two affirmative defenses, Appellee should have pleaded the
issue in a reply . . . ."). Therefore, the Wilsons
cannot rely upon the ...