Deutsche Bank Nat'l Trust Co. v. Green, Case No. 5D17-710

• Decision Date: 27 July 2018
• Docket Number: Case No. 5D17-710
• Citation: 253 So.3d 682
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY as Trust FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2006-FF16, ASSET-BACKED CERTIFICATES SERIES 2006-FF16, Appellant, v. Paul A. GREEN, Appellee.
• Court: Florida District Court of Appeals

253 So.3d 682

DEUTSCHE BANK NATIONAL TRUST COMPANY as Trust FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2006-FF16, ASSET-BACKED CERTIFICATES SERIES 2006-FF16, Appellant,

v.Paul A. GREEN, Appellee.

Case No. 5D17-710

District Court of Appeal of Florida, Fifth District.

Opinion filed July 27, 2018

Rehearing Denied September 24, 2018

N. Mark New, II, William L. Grimsley and Joseph A. Apatov, of McGlinchey Stafford, Jacksonville, for Appellant.

Mark P. Stopa, of Stopa Law Firm, Tampa, and Latasha C. Scott, of Lord Scott, PLLC, Tampa, for Appellee.

PER CURIAM.

Deutsche Bank National Trust Company, as Trustee for First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates Series 2006-FF16 (Bank), appeals the trial court's involuntary dismissal of its foreclosure action against Paul A. Green on statute of limitations grounds. Because the specific default date asserted in Bank's foreclosure complaint, July 1, 2010, was within the five years prior to the filing of its complaint on June 30, 2015, the action was not barred by the statute of limitations, and it was error to conclude otherwise. See Bank of N.Y. Mellon v. Stallbaum, 230 So.3d 1271, 1271 (Fla. 5th DCA 2017) (concluding that where complaint alleged a continuous state of default that 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, its action was not barred by statute of limitations."). It does not matter that a prior foreclosure action based on the same note and mortgage was involuntarily dismissed. Bank "ha[s] the right to file a subsequent foreclosure action—and to seek acceleration of all sums due under the note—so long as the foreclosure action was based on a subsequent default, and the statute of limitations ha[s] not run on that particular default." Bartram v. U.S. Bank Nat'l Ass'n, 211 So.3d 1009, 1012 (Fla. 2016). Green concedes this point on appeal, noting in his answer brief that at the time the trial court involuntarily dismissed Bank's foreclosure complaint, it did not have the benefit of this Court's opinion in Stallbaum.

Nevertheless, Green urges us to affirm based on a series of tipsy coachman arguments.¹ We have thoroughly reviewed Green's arguments in support of affirmance and find no merit in them. The evidence introduced at trial, including the original note and mortgage, the acceleration letter, and the payment history, established that the note and mortgage executed by Green existed, Bank had standing to foreclose, Green failed to make the July 1, 2010 payment and all subsequent payments,² and that Green received the acceleration letter. See Bank of Am., N.A. v. Delgado, 166 So.3d 857, 859 (Fla. 3d DCA 2015) (citing Kelsey v. SunTrust Mortg., Inc., 131 So.3d 825, 826 (Fla. 3d DCA 2014) ); see also Bowmar v. SunTrust Mortg., Inc., 188 So.3d 986, 988 (Fla. 5th DCA 2016).

The acceleration letter contained the amount necessary to cure the default and reinstate the loan under paragraph 19 of the mortgage. Green argues that the acceleration letter did not substantially comply with paragraph 22 of the mortgage because the amount necessary to cure the default was incorrect due to the effect of the dismissal of the previous foreclosure action. He contends that pursuant to Bartram, 211 So.3d at 1012, 1021, the borrower can cure the default by resuming normal monthly payments in the month after dismissal. However, this language in Bartram was discussing the reinstatement provision in paragraph 19, which clearly states that the amount necessary to cure the default and reinstate the loan consists of, among other things, "all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred" and "all expenses incurred in enforcing this Security Instrument." Reinstatement involves a new promise made by the borrower, based on the terms in paragraph 19, acknowledging the full amount owed under the loan in exchange for reinstatement of the loan. See Silva v. Robbins, 115 Fla. 830, 156 So. 280, 281–82 (Fla. 1934) (noting that moral obligation is sufficient consideration when barred debt is acknowledged in new promise); Wassil v. Gilmour, 465 So.2d 566, 568 (Fla. 3d DCA 1985) (stating that acknowledgment of debt is a new promise) (citing Jacksonville Am. Publ'g Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672, 676–77 (Fla. 1940) ). This new promise has the effect of acknowledging and reviving any barred debts creating "a new and independent cause of action on that separate undertaking." Wassil, 465 So.2d at 568 (citing Tate v. Clements, 16 Fla. 339, 364, 366–67 (1878) ); accord Nolden v. Nolden, 650 So.2d 84, 85 (Fla. 5th DCA 1995). Thus, the dismissal of the previous foreclosure action has no applicability to the amount necessary to cure the default and reinstate the loan under paragraph 19.

Moreover, the trial court concluded Green suffered no prejudice from the content of the acceleration letter based on his testimony...