CCM Pathfinder Palm Harbor Mgmt., LLC v. Unknown Heirs
| Decision Date | 21 January 2015 |
| Docket Number | No. 2D13–5286.,2D13–5286. |
| Citation | 198 So.3d 3 |
| Parties | CCM PATHFINDER PALM HARBOR MANAGEMENT, LLC, Appellant, v. UNKNOWN HEIRS, Devisees, Grantees, Assignees, Lienors, Creditors, Trustees, or Other Claimants OF Normand W. GENDRON, Deceased; Deutsche Bank National Trust Company, solely as Trustee for Harbor View Mortgage Loan Trust Mortgage Loan Pass–Through Certificates, Series 2006–14; Maribel Ruiz ; William Savickas; U.S. Bank National Association, as Trustee of J.P. Morgan Alternative Loan Trust 2007–A2 ; Pinnacle Financial Corporation; C & N Renovation, Inc. ; Rondal Joseph Vickers; Palisades Collection, LLC; Federal National Mortgage Association; Gary Stannish; Christine Stannish; Loancity; Mortgage Electronic Registration Systems, Inc.; Cypress Falls at Palm Harbor Condominium Association, Inc.; Howard Chavez; Deutsche Bank National Trust Company, solely as Trustee for Natixis Real Estate Capital Trust 2007–HE2 Mortgage Pass–Through Certificates, Series 2007–HE2; Brian James Magarban; Jennifer Lynn Waters; Amnet Mortgage, LLC; Suntrust Bank; Alberto Turrini; Cesar Joseph Rey; Jorbrimar Electra Tuma Rey; Bankunited; James M. Thebeau; Mary–Mathilde Thebeau; Wells Fargo Bank, N.A.; Nationstar Mortgage, LLC; Patrick Doyle ; Gail Doyle; JPMorgan Chase Bank, N.A.; Pinellas County Board of County Commissioners; Meza nka, LLC; Brian Doyle, a/k/a Brian M. Doyle; Midfirst Bank; Craig Soifer; Cristina Druker; Wells Fargo Bank, N.A., as Trustee on behalf of the Harborview 2006–12 Trust Fund; Kemi Productions, Inc.; Cletus Woo; Sherry Woo; Deutsche Bank National Trust Company solely as Trustee for American Home Mortgage Assets Trust 2006–6, Mortgage–Backed Pass–Through Certificates Series 2006–6; Julie Egert, Michelle Woo, Trustee, or any successors in trust, under the Michelle Woo Living Trust dated May 2, 2007, and any amendments thereto; American Home Mortgage; Anthony J. Martino; Joanne Martino; Fifth Third Bank; Fifth Third Mortgage Company; Rollin Guy Maranville; Chase Home Finance, LLC; Adella V. Gonzalez; Pelican Capital Investment Group, as Trustee, under the provisions of a trust agreement dated the 24th day of January, 2007 known as the Pelican Properties Land Trust; U.S. Bank National Association as Trustee of Master Adjustable Rate Mortgages Trust 2006–OA2; America's Wholesale Lender; Deutsche Bank National Trust Company, as Trustee for the Pooling and Servicing Agreement Relating to IMPAC Secured Assets Corporation, Mortgage PassThrough Certificates, Series 2006–4; Unknown Heirs, Devisees, Grantees, Assignees, Lienors; Creditors, Trustees, or Other Claimants of John Marlow, Deceased; Paulette Marlow; Deplessie Drew; Miriam Drew; Deutsche Bank Trust Company Americas, solely as Trustee for Residential Accredit Loans, Inc. PassThrough Certificates Series 2006–QS16; Rose Marie Barnes; John C. Irizarry; Green Tree Servicing, LLC; Bank of America, N.A.; Edwin Vogt; Onewest Bank FSB; Tara Ramsaran; Christopher Schreindorfer; Sagine Bergeron; Thierry Bergeron; Citibank, N.A., as Trustee for Structured Mortgage Asset Investments II, Inc., Bear Stearns Alt–A, Mortgage Pass–Through Certificates Series 2007–1; Geneva Mortgage Corp.; Monica Karcz; Michael J. Sibalic; Jonathan D. Elrom; Badger Investments, LLC; Thomas Salvato; Ian Stroud; Luan; Danielle Brinkman; Alexis Thebeau; Vernell Jones; Steven Dugan; William Kracht IV; William Kracht V; Nadia Quell; Kayan Julian Teller; Faith Ocasio; William Ocasio ; Kimberlee Burris; Glenn Burris; Leora Hart; Kelly Doran; Jean Person; Chelsea Hirvela; Kyle Hirvela; Alyssa Foster; Kevin Jones; Scott Benson; Adriana Mendoza ; Victor Zoubenko; Anthony Timonere; Giovanni Mannino; and Jane Doe XL and John Doe XL and XLII, fictitious names representing tenants in possession, Appellees. |
| Court | Florida District Court of Appeals |
Ceci Culpepper Berman of Brannock & Humphries, Tampa, for Appellant.
Michele A. Cavallaro of Fidelity National Law Group, Fort Lauderdale, for Appellees Mary–Mathilde Thebeau, James M. Thebeau, Anthony J. Martino, Joanne Martino, Monica Karcz, and Jonathan D. Elrom.
Nancy M. Wallace and Michael J. Larson of Akerman LLP, Tallahassee; and William P. Heller of Akerman LLP, Fort Lauderdale, for Appellee Nationstar Mortgage, LLC.
Michael K. Winston, Dean A. Morande, and Donna L. Eng of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellees Wells Fargo Bank, N.A.; Wells Fargo Bank, N.A., as Trustee on behalf of the Harborview 2006–12 Trust Fund; and Federal National Mortgage Association.
Michael A. Cohn and Martin S. Awerbach of Awerbach?Cohn, Clearwater, for Appellees Gary Stannish; Christine Stannish; Cesar Joseph Rey; Jorbrimar Electra Tuma Rey; Wells Fargo Bank, N.A., as Trustee for Harborview Mortgage Loan Trust 2007–3; Gail Doyle; Patrick Doyle; Adella V. Gonzalez; Brian Doyle ; MidFirst Bank; Green Tree Servicing LLC; OneWest Bank, FSB; and Deutsche Bank National Trust Company, solely as Trustee for Harbor View Mortgage Loan Trust Mortgage Pass–Through Certificates Series 2006–14.
Michael W. Smith of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Orlando, for Appellee Deutsche Bank National Trust Company.
Robert M. Coplen, Murray T. Beatts, Mary Booth Ratanaruka, Ross S. Felsher, and Elizabeth C. Fitzgerald of Robert M. Coplen, P.A., for Appellees Tara Ramsaran, Christopher Schreindorfer, Sagine Bergeron, and Thierry Bergeron.
No appearance for remaining Appellees.
CCM Pathfinder Palm Harbor Management, LLC (Pathfinder), seeks review of the order dismissing with prejudice its complaint as to six of the many defendants in this foreclosure case. We agree with Pathfinder that dismissal of its complaint based on the statute of limitations defense was improper because the facts supporting such a defense were outside the four corners of Pathfinder's amended complaint. We also agree that, on the facts presented here, the applicable statute of repose did not bar Pathfinder's action. Accordingly, we reverse the dismissal and remand for further proceedings.
Pathfinder is the servicing agent for a consortium of lenders that financed a $29 million condominium conversion loan in 2005. The loan was originally made to Palm Harbor One, LLC, as the developer of the condominium conversion. As the developer, Palm Harbor One signed a promissory note which was secured by a mortgage. The promissory note had a stated maturity date of November 30, 2006, and this maturity date was set forth in the mortgage, which was subsequently recorded. The note itself was not recorded.
As part of the same transaction, Palm Harbor One signed a separate loan agreement which contained additional terms and conditions relating to the loan and satisfaction of the note and mortgage. Rather than having a specified date for its maturity, the loan agreement stated that its maturity date was “twelve (12) months after the Mortgage is recorded.” The loan agreement and its terms were incorporated into the mortgage by specific reference; however, unlike with the maturity date of the note, the mortgage did not identify the maturity date for the loan agreement in any manner. Ultimately, the mortgage was recorded on December 16, 2005, making the maturity date of the loan agreement December 16, 2006.1 Like the note, however, the loan agreement itself was never recorded.
One of the terms of the loan agreement required Palm Harbor One to pay Pathfinder a “release fee” when each condominium unit was sold. In exchange for payment of the release fee on each individual unit, Pathfinder agreed to release its mortgage as to that unit and to provide Palm Harbor One and the purchaser with a partial release of its mortgage. For a period of time after the loan transaction, Palm Harbor One sold units and paid the corresponding release fees for those units to Pathfinder. Pathfinder in turn provided releases of its mortgage as to those units to their purchasers. However, as to forty-five of the units sold by Palm Harbor One, Pathfinder did not receive the release fee from either Palm Harbor One or the purchasers. At some point after these forty-five units were sold, Palm Harbor One went into bankruptcy.
After extended proceedings in the bankruptcy court, Pathfinder filed its foreclosure complaint in March 2013 against the owners of the forty-five units for which Pathfinder had never received the release fee. In response, six of those unit owners filed motions to dismiss, asserting that Pathfinder's foreclosure action was barred by the five-year statute of limitations set forth in section 95.11(2)(c), Florida Statutes (2013), and by the five-year statute of repose set forth in section 95.281(1). The trial court held a hearing on these motions and dismissed the foreclosure complaint as to those unit owners under both statutes. Pathfinder now appeals this ruling.
We dispose first of the statute of limitations issue. Section 95.11(2)(c) provides that an action to foreclose a mortgage must be commenced within five years from when the right to foreclose accrues. See Travis Co. v. Mayes, 160 Fla. 375, 36 So.2d 264, 265 (1948) ; City of Riviera Beach v. Reed, 987 So.2d 168, 170 (Fla. 4th DCA 2008). In the case of an installment note, the right to foreclose accrues as to each installment on the date the installment becomes due. See, e.g., Monte v. Tipton, 612 So.2d 714, 716 (Fla. 2d DCA 1993). Obviously then, if the default is based on the failure to make the final payment, the limitations period runs from the maturity date of the note.
Here, the maturity date of the note was November 30, 2006. Hence, the limitations period expired no later than November 30, 2011. Further, to the extent that the loan agreement required that certain payments be made, its maturity date was December 16, 2006, and the limitations period expired as to those obligations no later than December 16, 2011. However, Pathfinder's foreclosure complaint was not filed until March 15, 2013—a date clearly after the...
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