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U.S. Bank National Association v. Amaya

Florida Court of Appeals, Third District

July 25, 2018

U.S. Bank National Association, etc., Appellant,
v.
Jose A. Amaya, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County No. 14-13898, Jorge E. Cueto, Judge.

          Lapin & Leichtling, LLP, and Benjamin B. Carter, for appellant.

          Corona Law Firm, P.A., and Ricardo Corona, Ricardo M. Corona, and Dennis Donet, for appellees.

          Before LAGOA, FERNANDEZ, and SCALES, JJ.

          LAGOA, J.

         Appellant, U.S. Bank National Association ("U.S. Bank"), appeals from a final judgment entered in favor of Appellees, Jose A. Amaya and Maria T. Pena (the "Borrowers"), determining that U.S. Bank's Verified Amended Complaint to Foreclose Mortgage (the "Verified Amended Complaint") seeking to foreclose on the Borrower's property was barred by both the statute of limitations and res judicata. For the reasons stated below, we reverse the final judgment.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On February 6, 2006, the Borrowers executed a promissory note (the "Note") in favor of Countrywide Home Loans, Inc., secured by a mortgage on the Borrowers' real property in Miami-Dade County. The Note was endorsed in blank and assigned to U.S. Bank. After the Borrowers defaulted on the Note, U.S. Bank filed its initial foreclosure action against the Borrowers in 2009, alleging that the Borrowers failed to make a payment due on May 1, 2008, and all subsequent payments. On September 14, 2012, that action was involuntarily dismissed without prejudice.[1]

         After the dismissal of that previous action, Select Portfolio Servicing, Inc. ("SPS"), U.S. Bank's servicing agent, sent a default letter dated February 19, 2013, informing the Borrowers that they were in default for payments due since May 1, 2008, as well as for advances made on the Borrowers' behalf and the deficit in their escrow account, and that they had thirty days to cure the default. On May 28, 2014, U.S. Bank filed the instant foreclosure complaint, alleging that "[t]here is a default under the terms of the Note and Mortgage for the May 1, 2008, payment and all payments due thereafter." Subsequently, U.S. Bank moved to amend its foreclosure complaint and filed the Verified Amended Complaint, re-alleging that the Borrowers "have defaulted under the covenants, terms and agreements of the Note in that the payment due May 1, 2008, and all subsequent payments have not been paid." On November 6, 2015, the Borrowers filed their Answer and Affirmative Defenses to the Verified Amended Complaint, raising various affirmative defenses including the statute of limitations, res judicata, and failure to comply with conditions precedent.

         On January 19, 2017, the case proceeded to a bench trial, where U.S. Bank introduced into evidence through an employee of SPS: (1) the original Note; (2) a certified copy of the mortgage; (3) a certified copy of the assignment of mortgage from MERS; (4) a power of attorney between U.S. Bank and its servicing agent, SPS; (5) SPS and prior servicers' records regarding payment history and escrow amounts for the loan; and (6) SPS's default letter to the Borrowers. On February 14, 2017, the trial court entered the final judgment in favor of the Borrowers, finding that U.S. Bank's Verified Amended Complaint was barred by both the statute of limitations and res judicata. The trial court additionally noted that "any attempt by [U.S. Bank], after the close of its evidence, to 'waive' or 'reduce' those monthly installments that are barred by the statute of limitations to assert a different cause of action would violate Paragraph 22(a) of the subject Mortgage" requiring U.S. Bank's notice to specify the default, as the default letter was based upon the May 1, 2008, default.[2] This appeal ensued.

         II. STANDARD OF REVIEW

         "'[A] legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.'" Nationstar Mortg., LLC v. Sunderman, 201 So.3d 139, 140 (Fla. 3d DCA 2015) (quoting Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009)). "'[A] trial court's ruling that relief is barred on the grounds of res judicata . . . is reviewed de novo.'" United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103 (Fla. 3d DCA ...


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