228 So.3d 167 (Fla.App. 5 Dist. 2017), 5D16-1637, Klebanoff v. Bank of New York Mellon

Docket Nº5D16-1637
Citation228 So.3d 167, 42 Fla.L.Weekly D 1480
Opinion JudgeEVANDER, J.
Party NameGreg 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.
AttorneyTanner 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.
Judge PanelCOHEN, C.J. and EDWARDS, J., concur.
Case DateJune 30, 2017
CourtFlorida Court of Appeals, Fifth District

Page 167

228 So.3d 167 (Fla.App. 5 Dist. 2017)

42 Fla.L.Weekly D 1480

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.

No. 5D16-1637

Florida Court of Appeals, Fifth District

June 30, 2017

Rehearing En Banc Denied October 9, 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.

OPINION

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

Page 168

the Bank's action based on the...

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11 practice notes
  • U.S. Bank National Association v. Morelli, 060618 FLCA3, 3D17-286
    • United States
    • Florida Florida Court of Appeals Third District
    • 6 Junio 2018
    ...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 ......
  • U.S. BANK, N.A. v. Gonzales, 050218 FLCA2, 2D17-3262
    • United States
    • Florida Florida Court of Appeals Second District
    • 2 Mayo 2018
    ...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......
  • U.S. Bank National Association v. Amaya, 072518 FLCA3, 3D17-576
    • United States
    • Florida Florida Court of Appeals Third District
    • 25 Julio 2018
    ...mortgage since November 2008, [as] each missed payment constituted a new default"); Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 169 (Fla. 5th DCA 2017) ("Because the Bank alleged and proved missed payments within the five years prior to the filing of ......
  • 228 So.3d 177 (Fla.App. 5 Dist. 2017), 5D16-3609, U.S. Bank, N.A. v. Diamond
    • United States
    • Florida Florida Court of Appeals Fifth District
    • 1 Septiembre 2017
    ...Appellant's complaint. For the reasons set forth below, we reverse. We recently decided Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 42 Fla.L.Weekly D 1480 (Fla. 5th DCA June 30, 2017), motion for reh'g filed, where we held that "[b]ecause the Bank alleged ......
  • Request a trial to view additional results
11 cases
  • U.S. Bank National Association v. Morelli, 060618 FLCA3, 3D17-286
    • United States
    • Florida Florida Court of Appeals Third District
    • 6 Junio 2018
    ...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 ......
  • U.S. BANK, N.A. v. Gonzales, 050218 FLCA2, 2D17-3262
    • United States
    • Florida Florida Court of Appeals Second District
    • 2 Mayo 2018
    ...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......
  • U.S. Bank National Association v. Amaya, 072518 FLCA3, 3D17-576
    • United States
    • Florida Florida Court of Appeals Third District
    • 25 Julio 2018
    ...mortgage since November 2008, [as] each missed payment constituted a new default"); Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 169 (Fla. 5th DCA 2017) ("Because the Bank alleged and proved missed payments within the five years prior to the filing of ......
  • 228 So.3d 177 (Fla.App. 5 Dist. 2017), 5D16-3609, U.S. Bank, N.A. v. Diamond
    • United States
    • Florida Florida Court of Appeals Fifth District
    • 1 Septiembre 2017
    ...Appellant's complaint. For the reasons set forth below, we reverse. We recently decided Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 42 Fla.L.Weekly D 1480 (Fla. 5th DCA June 30, 2017), motion for reh'g filed, where we held that "[b]ecause the Bank alleged ......
  • Request a trial to view additional results