U.S. Bank Nat'l Ass'n v. Wilson, Case No. 5D17-2130

• Decision Date: 20 July 2018
• Docket Number: Case No. 5D17-2130
• Citation: 252 So.3d 306
• Parties: U.S. BANK NATIONAL ASSOCIATION, as Trustee, in Trust FOR The REGISTERED HOLDERS OF CITIGROUP MORTGAGE LOAN TRUST 2007-AHL2, ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-AHL2, etc., Appellant, v. Vivien F. WILSON and Marc J. Wilson, Appellees.
• Court: Florida District Court of Appeals

252 So.3d 306

U.S. BANK NATIONAL ASSOCIATION, as Trustee, in Trust FOR The REGISTERED HOLDERS OF CITIGROUP MORTGAGE LOAN TRUST 2007-AHL2, ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-AHL2, etc., Appellant,

v.Vivien F. WILSON and Marc J. Wilson, Appellees.

Case No. 5D17-2130

District Court of Appeal of Florida, Fifth District.

Opinion filed July 20, 2018

Allison Morat and Meghan Keane, of Pearson Bitman LLP, Maitland, for Appellant.

J. Christopher Crowder, of Faro & Crowder, P.A., Melbourne, for Appellees.

JOLLEY, M.G., Associate Judge.

U.S. Bank National Association ("the Bank") appeals the final summary judgment entered in favor of Vivien and Marc Wilson ("the Wilsons"). We reverse and remand.

On October 17, 2006, the Wilsons signed a promissory note secured by a mortgage in exchange for a loan of $164,000. In December 2007, the Wilsons failed to make the monthly payment due on the note. Following two dismissed foreclosure actions, the Bank filed the instant complaint on September 3, 2014, alleging that it had "not been paid the payment due December 1, 2007, and all subsequent payments, which has resulted in a default of the note and mortgage."

The Wilsons answered the complaint and raised affirmative defenses, including the expiration of the statute of limitations under section 95.11(2)(c) of the Florida Statutes (2014). The Bank did not file a reply. The Wilsons moved for summary judgment, arguing that the complaint, filed on September 3, 2014, was based upon a single default on December 1, 2007, well-beyond the five-year statute of limitations. The trial court granted the motion and entered a final summary judgment.

The Bank contends that the trial court erred in entering a final summary judgment based upon the expiration of the statute of limitations because the pleadings alleged a continuous state of default. We agree.

A complaint alleging a continuous state of default, which includes acts of default within the five-year period preceding the filing of the complaint, is not barred by the statute of limitations. U.S. Bank Nat'l Ass'n for Lehman XS Tr. Mortg. Pass-Through Certificates, Series 2007-16N v. Morelli , 43 Fla. L. Weekly D1295, 249 So.3d 717, 2018 WL 2708699 (Fla. 3d DCA June 6, 2018). Here, the complaint sufficiently alleged a continuous state of default by alleging an initial default for the failure to make "the payment due December 1, 2007, and all subsequent payments." Thus, the statute of limitations did not bar the complaint. Id. ; see also Deutsche Bank Nat'l Tr. Co. v. Miller , 239 So.3d 789 (Fla. 5th DCA 2018) ; Bank of N.Y. Mellon v. Stallbaum , 230 So.3d 1271 (Fla. 5th DCA 2017) ; U.S. Bank N.A. v. Diamond , 228 So.3d 177, 178 (Fla. 5th DCA 2017).

The Wilsons raise several alternative bases for affirmance under the "tipsy coachman" rule. See Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 645 (Fla. 1999) (allowing the appellate court to affirm if the trial court reached the right result, but for the wrong reason, so long as "there is any basis which would support" the trial court's ruling). Only one of these arguments merits discussion: whether the summary judgment may be affirmed because the Bank failed to file a reply to avoid the affirmative defense of statute of limitations.

Florida Rule of Civil Procedure 1.100(a) provides that, if an answer contains an affirmative defense and the plaintiff seeks to avoid it, the plaintiff must file a reply on the avoidance. However, avoiding an affirmative defense is different from a denial of that affirmative defense, and a denial is neither required nor permitted by the rules. Kitchen v. Kitchen , 404 So.2d 203, 205 (Fla. 2d DCA 1981). Instead, a reply to an affirmative defense is required only to allege new facts which may be sufficient to avoid the legal effect of the facts contained in the affirmative defense. Abston v. Bryan , 519 So.2d 1125, 1127 (Fla. 5th DCA 1988) ; Kitchen , 404 So.2d at 205. "When a defendant files affirmative defenses and the plaintiff does not reply, the affirmative...