U.S. Bank National Association, etc., Appellant,
Jose A. Amaya, et al., Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County No.
14-13898, Jorge E. Cueto, Judge.
& Leichtling, LLP, and Benjamin B. Carter, for appellant.
Law Firm, P.A., and Ricardo Corona, Ricardo M. Corona, and
Dennis Donet, for appellees.
LAGOA, FERNANDEZ, and SCALES, JJ.
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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. This appeal ensued.
STANDARD OF REVIEW
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
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