Kebreau v. Bayview Loan Servicing, LLC, 4D16-2010.

• Decision Date: 12 July 2017
• Docket Number: No. 4D16-2010.,4D16-2010.
• Parties: Marie Carmen KEBREAU, Appellant, v. BAYVIEW LOAN SERVICING, LLC, in substitution for the original Plaintiff Christiana Trust, a division of Wilmington Savings Fund Society, FSB, as Trustee for Normandy Mortgage Trust, Series 2013–18, Appellee.
• Court: Florida District Court of Appeals

225 So.3d 255

Marie Carmen KEBREAU, Appellant,

v.BAYVIEW LOAN SERVICING, LLC, in substitution for the original Plaintiff Christiana Trust, a division of Wilmington Savings Fund Society, FSB, as Trustee for Normandy Mortgage Trust, Series 2013–18, Appellee.

No. 4D16-2010.

District Court of Appeal of Florida, Fourth District.

[July 12, 2017]

Catherine A. Riggins, Miami, for appellant.

Thomas Wade Young and Joseph B. Towne of Lender Legal Services, LLC, Orlando, for appellee.

Warner, J.

A homeowner appeals a final judgment of foreclosure, raising multiple issues. We address briefly the homeowner's argument that the foreclosure action was barred by the statute of limitations, as well as her contention that the mortgage was invalid because the deed to her was legally insufficient. We hold that the complaint was not barred by the statute of limitations where it alleged continuing defaults. As to the deed, the homeowner failed to properly raise her claim of its invalidity, and in any event, its defect was cured through the after-acquired title doctrine. We reverse, however, the attorney's fees award, as the appellee concedes that it did not present sufficient evidence to support the attorney's fees in the final judgment.

The homeowner argues that the final judgment of foreclosure should be reversed as barred by the statute of limitations because the complaint alleges that the homeowner defaulted in failing to make the payment due in July 2010, which occurred more than five years prior to the complaint being filed. The appellee counters that the complaint also alleged that the homeowner had failed to make all subsequent payments. Thus, the complaint alleged defaults that fell within the five-year limitations period. The Second District Court of Appeal addressed nearly identical facts in both Bollettieri Resort Villas Condominium Ass'n, Inc. v. Bank of New York Mellon , 198 So.3d 1140 (Fla. 2d DCA 2016), and Desylvester v. Bank of New York Mellon , No. 2D15-5053, 219 So.3d 1016, 2017 WL 2562370 (Fla. 2d DCA June 14, 2017). It concluded that "the allegations of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations." Desylvester, at 1020, at *3. We agree with Bollettieri and Desylvester. Accord Deuts c he Bank Tr. Co. Ams. v. Beauvais , 188 So.3d 938, 945 (Fla. 3d DCA 2016) (en banc); Kaan v. Wells Fargo Bank, N.A., 981 F.Supp.2d 1271, 1274 (S.D. Fla. 2013). Contra Hicks v. Wells Fargo Bank, N.A. , 178 So.3d 957, 959 (Fla. 5th DCA 2015) (holding that a foreclosure complaint alleging a default in payment in 2006 and all subsequent payments was barred by statute of limitations because the date of default was more than five years prior to filing complaint).

The homeowner also contends that the mortgage was invalid because she failed to acquire legal title to the property due to a defect in...