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

• Docket Nº: 5D16-1637
• Citation: 228 So.3d 167, 42 Fla.L.Weekly D 1480
• Opinion Judge: EVANDER, J.
• Party Name: 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.
• Attorney: 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.
• Judge Panel: COHEN, C.J. and EDWARDS, J., concur.
• Case Date: June 30, 2017
• Court: Florida Court of Appeals, Fifth District

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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

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the Bank's action based on the...