Mielke v. Deutsche Bank National Trust Co., 011019 FLCA1, 1D17-4265
|Opinion Judge:||WINOKUR, J. JUDGE|
|Party Name:||Connie L. Mielke and Blair C. Mielke, Appellants, v. Deutsche Bank National Trust Company, as Trustee for GSAA Home Equity Trust 2005-MTR1, Asset-Backed Certificates, Series 2005-MTR1, Appellee.|
|Attorney:||Robert J. Powell, Clark Partington, Pensacola, for Appellants. Allison Morat and Teris A. McGovern of Pearson Bitman, LLP, Maitland, for Appellee.|
|Judge Panel:||Makar and Winsor, JJ, concur|
|Case Date:||January 10, 2019|
|Court:||Florida Court of Appeals, First District|
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Okaloosa County. Terrance R. Ketchel, Judge.
Robert J. Powell, Clark Partington, Pensacola, for Appellants.
Allison Morat and Teris A. McGovern of Pearson Bitman, LLP, Maitland, for Appellee.
WINOKUR, J. JUDGE
Connie and Blair Mielke appeal the trial court's Final Judgment of Foreclosure in favor of Deutsche Bank National Trust Company (Deutsche Bank). The Mielkes argue that the complaint was time-barred because the statute of limitations had run on the bank's ability to enforce a lost note. Because we find that the requirements for enforcing a lost note pursuant to section 673.3091, Florida Statutes, do not create an independent cause of action triggering a separate statute of limitations on a mortgagee's right to foreclose, we affirm.
In 2005, the Mielkes executed a mortgage on a condominium in Destin. In May 2008, Deutsche Bank filed a foreclosure complaint against the Mielkes alleging they defaulted on their February 2008 mortgage payment and all subsequent payments. The complaint also contained a count to reestablish the lost promissory note. In 2010, the trial court dismissed the complaint without prejudice. As a result, the trial court never determined whether Deutsche Bank was permitted to enforce the lost note.
In 2016, Deutsche Bank filed a two-count complaint against the Mielkes. The first count was entitled "Foreclosure of Mortgage" and alleged that the Mielkes defaulted on their March 2011 mortgage payment and all subsequent payments. The foreclosure count stated that Deutsche Bank was not in possession of the promissory note, but that it was entitled to enforce it. The second count was entitled "Reestablishment of Lost Promissory Note." Deutsche Bank attached an affidavit to the complaint attesting that the promissory note had been lost, but asserting that the note had not been transferred to another party or cancelled.
In their answer, the Mielkes alleged that Deutsche Bank was barred by the statute of limitations on its count to reestablish the lost note. The Mielkes later moved for summary judgment, arguing that Deutsche Bank was aware of the lost promissory note during its previous 2008 complaint. Consequently, the Mielkes claimed that the current complaint was time-barred pursuant to section 95.11(2)(b), Florida Statutes. Deutsche Bank responded that its count to reestablish the lost note was ancillary to its mortgage foreclosure count.
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