219 So.3d 257 (Fla.App. 5 Dist. 2017), 5D16-2344, Bush v. Whitney Bank

Docket Nº:5D16-2344
Citation:219 So.3d 257, 42 Fla.L.Weekly D 1142
Opinion Judge:PALMER, J.
Party Name:DARYL BUSH, Appellant, v. WHITNEY BANK, A MISSISSIPPI STATE CHARTERED BANK, FORMERLY KNOWN AS HANCOCK BANK, A MISSISSIPPI STATE CHARTERED BANK, AS ASSIGNEE OF THE FDIC AS RECEIVER FOR PEOPLES FIRST COMMUNITY BANK, ETC., Appellee
Attorney:L. William Porter, III, of Bogin, Munns & Munns, P.A. of Orlando, for Appellant. Michael Anthony Shaw and Stephen P. Drobny of Jones Walker, LLLP, Miami, for Appellee.
Judge Panel:PALMER, J. JACOBUS, B.W., Senior Judge, concurs. BERGER, J., concurring specially. BERGER, J., concurring specially. JACOBUS, B.W., Senior Judge, concurs. BERGER, J., concurring specially.
Case Date:May 19, 2017
Court:Florida Court of Appeals
 
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Page 257

219 So.3d 257 (Fla.App. 5 Dist. 2017)

42 Fla.L.Weekly D 1142

DARYL BUSH, Appellant,

v.

WHITNEY BANK, A MISSISSIPPI STATE CHARTERED BANK, FORMERLY KNOWN AS HANCOCK BANK, A MISSISSIPPI STATE CHARTERED BANK, AS ASSIGNEE OF THE FDIC AS RECEIVER FOR PEOPLES FIRST COMMUNITY BANK, ETC., Appellee

No. 5D16-2344

Florida Court of Appeals, Fifth District

May 19, 2017

Appeal from the Circuit Court for Orange County, John Marshall Kest, Judge.

AFFIRMED.

L. William Porter, III, of Bogin, Munns & Munns, P.A. of Orlando, for Appellant.

Michael Anthony Shaw and Stephen P. Drobny of Jones Walker, LLLP, Miami, for Appellee.

PALMER, J. JACOBUS, B.W., Senior Judge, concurs. BERGER, J., concurring specially. BERGER, J., concurring specially.

OPINION

PALMER, J.

In this breach of contract action, Daryl Bush (the borrower) appeals the final judgment of monetary damages entered by the trial court in favor of Whitney Bank (the bank). Because the trial court properly ruled that the one-year statute of limitations

Page 258

in section 95.11(5)(h) of the Florida Statutes (2015) did not apply to the bank's action, we affirm.

The borrower signed a promissory note (secured by a mortgage) and delivered it to the Peoples First Community Bank. The note was later transferred to Hancock Bank. Subsequently, the borrower requested a short sale which Hancock Bank approved. In the letter approving the short sale, Hancock Bank wrote: 15. The " shortfall" due to Hancock Bank is estimated at $235,093,80. The Borrower(s) will continue to be obligated to pay Hancock Bank the shortfall amount (outstanding loan balancing including additional charges, less net sale proceeds in [the] amount of $235.093.80).

The borrower accepted the terms of the letter, and the short sale occurred on August 31, 2011.

On September 19, 2015, the bank filed an action seeking to reestablish a lost note and to obtain damages for the borrower's breach of the promissory note. The borrower filed a motion to dismiss the action, alleging that the action was time barred under section 95.11(5)(h) which provides: [a]n action to enforce a claim of a deficiency...

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