IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
GREG H. KLEBANOFF AND THUY
KLEBANOFF,
Appellants,
v. Case No. 5D16-1637
BANK OF NEW YORK MELLON, F/K/A
THE BANK OF NEW YORK, AS
TRUSTEE FOR THE
CERTIFICATEHOLDERS OF CWALT
INC., ALTERNATIVE LOAN TRUST
2006-HY11, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-HY11, ET AL,
Appellees.
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Opinion filed June 30, 2017
Appeal from the Circuit Court
for Flagler County,
Scott C. Dupont, Judge.
Tanner Andrews, of Tanner Andrews, P.A.,
Deland, for Appellants.
A. Donald Scott, Jr., of Clarfield, Okon,
Salomone & Pincus, P.L., West Palm
Beach, for Appellees.
EVANDER, J.
Greg Klebanoff and Thuy Klebanoff (“the Klebanoffs”) appeal the trial court’s final
judgment of foreclosure in favor of the Bank of New York Mellon, f/k/a The Bank of New
York, as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2006-
HY11, Mortgage Pass-Through Certificates, Series 2006-HY11 (“the Bank”). On appeal,
the Klebanoffs argue that this court should reverse the final judgment of foreclosure
because the Bank’s action was barred by the applicable statute of limitations. We affirm.
On June 26, 2014, the Bank filed a mortgage foreclosure complaint against the
Klebanoffs, alleging that “[t]here [was] a default under the terms of the Note and Mortgage
for the March 1, 2009 payment and all subsequent payments due thereafter.” The
complaint further alleged that the Bank was “declar[ing] the full amount payable under the
Note and Mortgage.” The Klebanoffs filed an answer generally denying the allegations
of the complaint and raising the statute of limitations as an affirmative defense. At trial,
the Bank presented evidence reflecting that the Klebanoffs had failed to make the March
1, 2009 payment and any payment thereafter. The trial court entered a final judgment in
favor of the Bank, and this appeal followed.
The Klebanoffs argue that pursuant to our decision in Hicks v. Wells Fargo Bank,
N.A., 178 So. 3d 957 (Fla. 5th DCA 2015), the trial court was constrained to dismiss the
Bank’s action based on the applicable five-year statute of limitations in section
95.11(2)(c), Florida Statutes (2014). Contrary to the Klebanoffs’ contention, Hicks is
distinguishable. In Hicks, although the complaint alleged that the mortgagors were in a
continuing state of default, the parties proceeded to trial on stipulated facts that
referenced only the initial default. 178 So. 3d at 958. Specifically, the bank’s counsel
stated:
There was a default on the loan that occurred in 2006. The
prior holder of the note, U.S. Bank, filed a foreclosure action
against defendants in 2006. That action was voluntarily
dismissed in 2008.
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In 2011, Wells Fargo, who is the current holder of the note and
mortgage, sent a notice of intent to accelerate to the
defendants, and then filed a new foreclosure action in 2013.
Id. (footnote omitted). We reversed the final judgment of foreclosure, concluding that the
foreclosure action should have been dismissed because it was based on a default that
occurred outside of the five-year statute of limitations. Id. at 959.
The dispositive facts in this appeal are not in dispute.
Because the earlier voluntary dismissal was not an
adjudication on the merits, Bank was entitled to bring a later
suit to foreclose on the note and mortgage. However, the suit
must still be based on an act of default within the five-year
statute of limitations period. Here, Bank’s complaint was filed
in 2013, based on an alleged default occurring on June 1,
2006. Because trial counsel for the parties stipulated to the
court that the facts were undisputed, with Bank’s counsel
additionally confirming that the sole determinative issue to
resolve at trial was one of law, the court erred when it failed
to dismiss the foreclosure complaint with prejudice based on
a default that occurred outside of the five-year statute of
limitations period.
Id. (citations and footnote omitted).
Hicks is consistent with the Third District Court of Appeal’s later opinion in Collazo
v. HSBC Bank USA, N.A., 213 So. 3d 1012 (Fla. 3d DCA 2016). In Collazo, our sister
court similarly reversed a final judgment of foreclosure because the complaint was filed
more than five years after the alleged payment default. 213 So. 3d at 1012. Notably, in
his concurring opinion, Judge Shepherd emphasized that the bank had proceeded at trial
only as to the initial default:
[T]he foreclosure action in the case before us was
commenced on January 24, 2014, based on a default in
payment alleged to have occurred on April 1, 2008. Counsel
for HSBC insisted on trying the case on the basis of that
default. After hearing the evidence, the trial court entered final
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judgment and calculated all amounts due and payable based
upon that default date over borrowers’ objections and
involuntary dismissal motions. In short, unlike counsel for the
lenders in both the [U.S. Bank National Association v.
Bartram, 140 So. 3d 1007 (Fla. 5th DCA), review granted, 160
So. 3d 892 (Fla. 2014) and Deutsche Bank Trust Company
Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016),
proceeding stayed, No. SC16-732 (Fla. May 31, 2017)] cases,
who circumvented the statute of limitations in those cases by
alleging a default within the five-year limitation period, counsel
for HSBC, when challenged, doubled down on a stale default
outside the limitation period.
Id. at 1013-14 (Shepherd, J., concurring).
By contrast, in the instant case, the Bank both alleged and proved that the
Klebanoffs had defaulted on each and every mortgage payment from March 1, 2009, and
onward. Because the Bank alleged and proved missed payments within the five years
prior to the filing of its complaint, its action was not barred by the statute of limitations.
See Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 198 So. 3d 1140, 1142-
43 (Fla. 2d DCA 2016), review granted, No. SC16-1680 (Fla. Nov. 2, 2016) (holding that
although mortgagor’s initial default occurred more than five years prior to bank’s
foreclosure complaint, bank’s allegation that mortgage was currently in default and that
no payments had been made since initial default was sufficient to establish that
foreclosure could be based on any of missed payments since initial breach, and was
therefore not barred by applicable five-year statute of limitations);1 see also Dorta v.
Wilmington Tr. Nat’l Ass’n, 25 Fla. L. Weekly Fed. D267 (M.D. Fla. Mar. 24, 2014) (“While
[mortgagee] may be barred from seeking foreclosure based on defaults more than five
years old, it is not barred from seeking foreclosure or from invoking its right to accelerate
1Although Bollettieri certified conflict with Hicks, for the reasons indicated above,
we believe that those two cases are not in conflict.
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the entire indebtedness based on more recent defaults . . . .”); Bartram v. U.S. Bank Nat’l
Ass’n, 211 So. 3d 1009, 1011 (Fla. 2016) (“Once there were future defaults, however, the
Bank had 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 had not run on that particular default.”).
Because the Bank alleged and proved that the subject mortgage was in a
continuous state of default, which included defaults within the five-year statute of
limitations, its action was not barred, even if the initial default was alleged to have
occurred more than five years prior to the filing of the complaint.
AFFIRMED.
COHEN, C.J. and EDWARDS, J., concur.
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