198 So.3d 1140 (Fla.App. 2 Dist. 2016), 2D15-3186, Bollettieri Resort Villas Condominium Association, Inc. v. The Bank of New York Mellon

Docket Nº:2D15-3186
Citation:198 So.3d 1140, 41 Fla.L.Weekly D 1988
Opinion Judge:SLEET, Judge.
Party Name:BOLLETTIERI RESORT VILLAS CONDOMINIUM ASSOCIATION, INC., Appellant, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as trustee for the holders of the certificates, First Horizon Pass-Through Certificates Series FHAMS 2007-FA4, by First Horizon Home Loans, a division of First Tennessee Bank National Association, Master Servicer, in...
Attorney:Shawn G. Brown of Redding & Brown, PLLC, Tampa, for Appellant. Nancy M. Wallace and Ryan D. O'Connor of Akerman LLP, Tallahassee; William P. Heller of Akerman LLP, Fort Lauderdale; Celia C. Falzone of Akerman LLP, Jacksonville; and Paul W. Ettori of Akerman LLP, Orlando, for Appellee, The Bank of...
Judge Panel:SALARIO, J., Concurs. SILBERMAN, J., Concurs specially with opinion. SILBERMAN, Judge, specially concurring.
Case Date:August 26, 2016
Court:Florida Court of Appeals

Page 1140

198 So.3d 1140 (Fla.App. 2 Dist. 2016)

41 Fla.L.Weekly D 1988

BOLLETTIERI RESORT VILLAS CONDOMINIUM ASSOCIATION, INC., Appellant,

v.

The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as trustee for the holders of the certificates, First Horizon Pass-Through Certificates Series FHAMS 2007-FA4, by First Horizon Home Loans, a division of First Tennessee Bank National Association, Master Servicer, in its capacity as agent for the trustee under the pooling and servicing agreement, and Barry Graham, Appellees.

No. 2D15-3186

Florida Court of Appeals, Second District

August 26, 2016

Page 1141

Appeal from the Circuit Court for Manatee County; George K. Brown, Jr., Judge.

Shawn G. Brown of Redding & Brown, PLLC, Tampa, for Appellant.

Nancy M. Wallace and Ryan D. O'Connor of Akerman LLP, Tallahassee; William P. Heller of Akerman LLP, Fort Lauderdale; Celia C. Falzone of Akerman LLP, Jacksonville; and Paul W. Ettori of Akerman LLP, Orlando, for Appellee, The Bank of New York Mellon.

No appearance for Appellee, Barry Graham.

OPINION

SLEET, Judge.

Bollettieri Resort Villas Condominium Association, Inc., appeals the final judgment of foreclosure entered in favor of Bank of New York Mellon (the bank). We affirm on all issues but write only to address the sufficiency of the bank's second foreclosure complaint.

On May 24, 2007, Barry Graham executed and delivered a promissory note and mortgage in the amount of $535,000 to First Horizon Home Loan Corporation in order to purchase a condominium at Bollettieri Resort Villas. Graham failed to make the September 1, 2007, payment or any of the monthly payments thereafter. As a result, First Horizon filed a complaint seeking foreclosure on February 1, 2008, alleging that Graham had defaulted on September 1, 2007. For reasons not explained in the appellate record, First Horizon voluntarily dismissed its complaint without prejudice on May 19, 2011.

On January 13, 2013, the bank filed a second action for foreclosure against Graham and joined Bollettieri as a defendant. In its complaint the bank alleged that “[t]he required installment payment of September 1, 2007, was not paid, and no subsequent payments have...

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