DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUST FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2006-FF16, ASSET-BACKED CERTIFICATES SERIES 2006-FF16, Appellant,
PAUL A. GREEN, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, Lisa Davidson,
Mark New, II, William L. Grimsley and Joseph A. Apatov, of
McGlinchey Stafford, Jacksonville, for Appellant.
P. Stopa, of Stopa Law Firm, Tampa, and Latasha C. Scott, of
Lord Scott, PLLC, Tampa, for Appellee.
Bank National Trust Company, as Trustee for First Franklin
Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates
Series 2006-FF16 (Bank), appeals the trial court's
involuntary dismissal of its foreclosure action against Paul
A. Green on statute of limitations grounds. Because the
specific default date asserted in Bank's foreclosure
complaint, July 1, 2010, was within the five years prior to
the filing of its complaint on June 30, 2015, the action was
not barred by the statute of limitations, and it was error to
conclude otherwise. See Bank of N.Y. Mellon v.
Stallbaum, 230 So.3d 1271, 1271 (Fla. 5th DCA 2017)
(concluding that where complaint alleged a continuous state
of default that included acts of default occurring within
five-year period, statute of limitations did not bar
complaint); Klebanoff v. Bank of N.Y. Mellon, 228
So.3d 167, 168-69 (Fla. 5th DCA 2017) ("Because Bank
alleged and proved missed payments within five years prior to
the filing of its complaint, its action was not barred by
statute of limitations."). It does not matter that a
prior foreclosure action based on the same note and mortgage
was involuntarily dismissed. Bank "ha[s] the right to
file a subsequent foreclosure action- and to seek
acceleration of all sums due under the note-so long as the
foreclosure action was based on a subsequent default, and the
statute of limitations ha[s] not run on that particular
default." Bartram v. U.S. Bank Nat'l
Ass'n, 211 So.3d 1009, 1012 (Fla. 2016). Green
concedes this point on appeal, noting in his answer brief
that at the time the trial court involuntarily dismissed
Bank's foreclosure complaint, it did not have the benefit
of this Court's opinion in Stallbaum.
Green urges us to affirm based on a series of tipsy coachman
arguments. We have thoroughly reviewed Green's
arguments in support of affirmance and find no merit in them.
The evidence introduced at trial, including the original note
and mortgage, the acceleration letter, and the payment
history, established that the note and mortgage executed by
Green existed, Bank had standing to foreclose, Green failed
to make the July 1, 2010 payment and all subsequent payments,
that Green received the acceleration letter. See Bank of
Am., N.A. v. Delgado, 166 So.3d 857, 859 (Fla. 3d DCA
2015) (citing Kelsey v. SunTrust Mortg., Inc., 131
So.3d 825, 826 (Fla. 3d DCA 2014)); see also Bowmar v.
SunTrust Mortg., Inc., 188 So.3d 986, 988 (Fla. 5th DCA
acceleration letter contained the amount necessary to cure
the default and reinstate the loan under paragraph 19 of the
mortgage. Green argues that the acceleration letter did not
substantially comply with paragraph 22 of the mortgage
because the amount necessary to cure the default was
incorrect due to the effect of the dismissal of the previous
foreclosure action. He contends that pursuant to
Bartram, 211 So.3d at 1012, 1021, the borrower can
cure the default by resuming normal monthly payments in the
month after dismissal. However, this language in
Bartram was discussing the reinstatement provision
in paragraph 19, which clearly states that the amount
necessary to cure the default and reinstate the loan consists
of, among other things, "all sums which then would be
due under this Security Instrument and the Note as if no
acceleration had occurred" and "all expenses
incurred in enforcing this Security Instrument."
Reinstatement involves a new promise made by the borrower,
based on the terms in paragraph 19, acknowledging the full
amount owed under the loan in exchange for reinstatement of
the loan. See Silva v. Robbins, 156 So. 280, 281-82
(Fla. 1934) (noting that moral obligation is sufficient
consideration when barred debt is acknowledged in new
promise); Wassil v. Gilmour, 465 So.2d 566, 568
(Fla. 3d DCA 1985) (stating that acknowledgment of debt is a
new promise) (citing Jacksonville Am. Publ'g Co. v.
Jacksonville Paper Co., 197 So. 672, 676-77 (Fla.
1940)). This new promise has the effect of acknowledging and
reviving any barred debts creating "a new and
independent cause of action on that separate
undertaking." Wassil, 465 So.2d at 568 (citing
Tate v. Clements, 16 Fla. 339, 364, 366-67 (1878));
accord Nolden v. Nolden, 650 So.2d 84, 85 (Fla. 5th
DCA 1995). Thus, the dismissal of the previous foreclosure
action has no applicability to the amount necessary to cure
the default and reinstate the loan under paragraph 19.
the trial court concluded Green suffered no prejudice from
the content of the acceleration letter based on his testimony
that he did not attempt to contact Bank or Bank's
servicer after receiving the acceleration letter. See
Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 47 (Fla. 5th
DCA 2015) (citing Allstate Floridian Ins. Co. v.
Farmer, 104 So.3d 1242, 1248-49 (Fla. 5th DCA 2012)).
Green's argument that he was prejudiced would require
reversing the trial court's finding that he was not. A
tipsy coachman argument is not proper if it would result in
an outcome other than an affirmance. See MacKenzie v.
Centex Homes, 208 So.3d 790, 793 n.3 (Fla. 5th DCA
2016); Advanced Chiropractic & Rehab. Ctr. Corp. v.
United Auto Ins. Co., 103 So.3d 866, 869 (Fla. 4th DCA
2012). Similarly, Green's tipsy coachman argument
concerning the effect the running of the statute of
limitations on some payment defaults may have on the amount
due on the note and mortgage encounters the same problem
because it would, if successful, not result in affirmance but
would instead merely reduce the amount Bank can recover in
the foreclosure judgment on remand after
reversal. See MacKenzie, 208 So.3d at 793
n.3; Advanced Chiropractic & Rehab. Ctr. Corp.,
103 So.3d at 869.
we reverse the order of the trial court involuntarily
dismissing the action and remand for a determination of the
amount due and entry of final judgment of foreclosure in
favor of Bank.
and REMANDED with instructions.
and BERGER, JJ, and JOLLEY, MG, Associate Judge, concur