Dyck-O'neal, Inc. v. Norton, 031519 FLCA2, 2D17-4968

Docket Nº:2D17-4968
Opinion Judge:LUCAS, JUDGE.
Party Name:DYCK-O'NEAL, INC., Appellant, v. TERESA NORTON and SAMUEL NORTON, Appellees.
Attorney:Alexander Allred of Castle Law Group, P.A., Largo, for Appellees. David M. Snyder of David M. Snyder, P.A.; Tampa; Susan B. Morrison of Law Offices of Susan B. Morrison, Tampa; and Joshua D. Moore of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
Judge Panel:LaROSE, CJ, and LENDERMAN, JOHN C, ASSOCIATE SENIOR JUDGE, Concur.
Case Date:March 15, 2019
Court:Florida Court of Appeals, Second District
 
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DYCK-O'NEAL, INC., Appellant,

v.

TERESA NORTON and SAMUEL NORTON, Appellees.

No. 2D17-4968

Florida Court of Appeals, Second District

March 15, 2019

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Hendry County; James D. Sloan, Judge.

Alexander Allred of Castle Law Group, P.A., Largo, for Appellees.

David M. Snyder of David M. Snyder, P.A.; Tampa; Susan B. Morrison of Law Offices of Susan B. Morrison, Tampa; and Joshua D. Moore of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.

LUCAS, JUDGE.

Dyck-O'Neal, Inc. (DONI), appeals a final summary judgment entered in favor of the Nortons. For the reasons explained below, we reverse and remand for further proceedings.

In 2006, the Nortons executed a promissory note and mortgage on their home in Hendry County, Florida, in favor of Bank of America, N.A. When the Nortons failed to make an installment payment, Bank of America initiated foreclosure proceedings and eventually obtained a final judgment of foreclosure in 2009 for $197, 586.52. A year later, the Federal National Mortgage Association (Fannie Mae) purchased the subject property at a foreclosure sale for $100. At the time of the sale, a real estate appraiser had appraised the property's value at $60, 000. In 2014, Fannie Mae assigned the final judgment and note to DONI.

Two months later, DONI initiated a deficiency action against the Nortons, seeking a deficiency judgment in the amount of $137, 586.52 plus interest, costs, and attorney's fees. It is undisputed that DONI filed this lawsuit before July 1, 2014, but more than five years from the date the Nortons first defaulted on their promissory note.1

In response to DONI's complaint, the Nortons raised several affirmative defenses, two of which are relevant to this appeal. In their first affirmative defense, the Nortons claimed that Fannie Mae issued a Form 1099-A tax filing stating that the value of the Nortons' property was $205, 285.35. The Nortons did not receive an amended 1099-A stating that the value of the property was actually $60, 000. The Nortons claimed that they "relied on" the amount represented in the Form 1099-A Fannie Mae had filed when they prepared their individual tax returns. Accordingly, they argued, estoppel should prevent DONI from bringing its deficiency action against them. In their second affirmative defense, the Nortons argued that DONI's lawsuit was barred by the statute of limitations. Citing to Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009 (Fla. 2016), the Nortons also argued that DONI should have brought its lawsuit within five years of the date of their default on their promissory note. As the Nortons defaulted in 2008, but DONI did not file its complaint until 2014, the Nortons claimed that DONI's lawsuit was barred by section 95.11(2)(c), Florida Statutes (2014).

DONI and the Nortons filed competing motions for summary judgment. The trial court denied DONI's motion, ruling that the Nortons had raised the "affirmative defense of the statute of limitations which raises a question of law and may be a viable defense." The trial court granted the Nortons' motion for summary judgment. The court's judgment cited two bases for its ruling: (1) under Bush v. Whitney Bank, 219 So.3d 257 (Fla. 5th...

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