U.S. BANK, NATIONAL ASSOCIATION, as trustee for Harborview Mortgage Loan Trust 2005-10, Mortgage Loan Pass-Through Certificates, Series 2005-10, Appellant,
EDWARD C. STURM, a/k/a EDWARD STURM; CATHERINE STURM; and BAY WEST RENTALS, LLC, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; George K. Brown,
Jr., Senior Judge.
M. Wallace of Akerman LLP, Tallahassee; William P. Heller of
Akerman LLP, Fort Lauderdale; and Celia C. Falzone of Akerman
LLP, Jacksonville, for Appellant.
appearance for Appellees.
residential foreclosure case, U.S. Bank, National
Association, as trustee for Harborview Mortgage Loan Trust
2005-10, Mortgage Loan Pass-Through Certificates, Series
2005-10 (U.S. Bank), appeals a final judgment of dismissal
entered in favor of borrowers Edward and Catherine Sturm.
Because the trial court erred in entering final judgment for
the Sturms, we reverse and remand for a new
Sturms moved for an involuntary dismissal following U.S.
Bank's presentation of its case-in-chief. The Sturms
raised several arguments, including an argument that U.S.
Bank failed to prove that it substantially complied with the
notice requirements of paragraph twenty-two of the mortgage,
a condition precedent to foreclosure. Specifically, the
Sturms argued that the notice sent pursuant to paragraph
twenty-two overstated the amount required to cure the default
because it included amounts that accrued more than five years
earlier, beyond the statute of limitations. The trial court
asked the parties to file written briefs concentrating on the
statute of limitations argument and subsequently entered a
final judgment in favor of the Sturms.
Sturms relied on U.S. Bank, N.A. v. Diamond, 228
So.3d 177 (Fla. 5th DCA 2017), as support for their statute
of limitations argument. However, the Fifth District has
since receded from Diamond and its progeny. See
Grant v. Citizens Bank, N.A., 263 So.3d 156, 157 &
n.1 (Fla. 5th DCA 2018) (en banc) (receding from
Diamond and Velden v. Nationstar Mortg.,
LLC, 234 So.3d 850 (Fla. 5th DCA 2018)).
Grant, the Fifth District rejected the argument that
a foreclosing plaintiff could not recover damages for
defaults that occurred more than five years prior to the
filing of the action, adopting instead the view put forth by
Justice Lawson in his concurring opinion in Bollettieri
Resort Villas Condominium Ass'n v. Bank of New York
Mellon, 228 So.3d 72 (Fla 2017) Grant, 263 So.3d at
157-58 ("Justice Lawson observed that when the right to
accelerate the debt for non-payment is optional with the
holder of the note, the statute of limitations does not run
until the note is due unless the lender or holder accelerates
and declares the full balance due earlier" (citing
Bollettieri, 228 So.3d at 74 (Lawson, J,
concurring))). This court and the Third and Fourth
Districts have all done the same. See Grdic v. HSBC Bank
USA, N.A., 267 So.3d 473, 475-76 (Fla. 2d DCA 2019);
Bank of Am., N.A. v. Graybush, 253 So.3d 1188, 1193
(Fla. 4th DCA 2018); and Gonzalez v. Fed. Nat'l
Mortg. Ass'n, 276 So.3d 332, 336-37 (Fla. 3d DCA
we reject the argument that the paragraph twenty-two notice
of default can include only amounts that have accrued within
five years. See Grdic, 267 So.3d at 474-75.
Accordingly, the Sturms' argument that their default
notice did not substantially comply with paragraph twenty-two
fails, and the trial court erred in entering a final judgment
of dismissal. The final judgment is reversed, and this matter
is remanded for a new trial.
VILLANTI and LUCAS, JJ., Concur.