Klebanoff v. Bank of N.Y. Mellon, Case No. 5D16–1637

Decision Date30 June 2017
Docket NumberCase No. 5D16–1637
Citation228 So.3d 167 (Mem)
Parties Greg H. KLEBANOFF and Thuy Klebanoff, Appellants, v. 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.
CourtFlorida District Court of Appeals

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.
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 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.
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11 cases
  • U.S. Bank Nat'l Ass'n v. Morelli
    • United States
    • Florida District Court of Appeals
    • June 6, 2018
    ...payments." Accordingly, U.S. Bank's action is not barred by the five-year statute of limitations. See Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 167–68 (Fla. 5th DCA 2017) (opinion issued on June 30, 2017, clarifying its previous opinion in Hicks v. Wells Fargo Bank, N.A., 178 So.3d 9......
  • Deutsche Bank Nat'l Trust Co. v. Green, Case No. 5D17-710
    • United States
    • Florida District Court of Appeals
    • July 27, 2018
    ...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, it......
  • Bollettieri Resort Villas Condo. Ass'n, Inc. v. Bank of N.Y. Mellon, SC16–1680
    • United States
    • Florida Supreme Court
    • October 12, 2017
    ...After further consideration of the subsequent opinion of the Fifth District Court of Appeal in Klebanoff v. Bank of New York Mellon, 228 So.3d 167, 2017 WL 2818078 (Fla. 5th DCA June 30, 2017), and the more recent cases from the Fourth District Court of Appeal in Kebreau v. Bayview Loan Ser......
  • U.S. Bank, N.A. v. Gonzales, Case No. 2D17–3262
    • United States
    • Florida District Court of Appeals
    • May 2, 2018
    ...the complaint occurred outside of the five-year statute of limitations. Id. at 959. However, as clarified in Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 168 (Fla. 5th DCA 2017), the parties in Hicks"proceeded to trial on stipulated facts that referenced only the initial default." Hicks......
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2 books & journal articles
  • Chapter 6-4 The Causes of Action and the Allegations
    • United States
    • Full Court Press Florida Foreclosure Law 2022 Chapter 6 Foreclosure Complaints
    • Invalid date
    ...subsequent payments' that makes the instant case fall within the rule as set out herein"); see also Klebanoff v. Bank of New York Mellon, 228 So. 3d 167, 169 (Fla. 5th DCA 2017) (same, finding that "because the Bank alleged and proved missed payments within the five years prior to the filin......
  • Chapter 6-4 The Causes of Action and the Allegations
    • United States
    • Full Court Press Florida Foreclosure Law 2020 Title Chapter 6 Foreclosure Complaints
    • Invalid date
    ...subsequent payments' that makes the instant case fall within the rule as set out herein"); see also Klebanoff v. Bank of New York Mellon, 228 So. 3d 167, 169 (Fla. 5th DCA 2017) (same, finding that "because the Bank alleged and proved missed payments within the five years prior to the filin......

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