Bollettieri Resort Villas Condominium Association, Inc. v. The Bank of New York Mellon
198 So. 3d 1140
| Fla. Dist. Ct. App. | 2016Background
- In 2007 Barry Graham executed a $535,000 note and mortgage to First Horizon; he defaulted by missing the September 1, 2007 payment and made no subsequent payments.
- First Horizon filed a foreclosure complaint in 2008 but voluntarily dismissed it without prejudice in 2011.
- In 2013 Bank of New York Mellon filed a second foreclosure action, alleging the September 1, 2007 installment was unpaid and that no subsequent payments had been made; Graham defaulted and a default judgment was entered against him.
- Bollettieri Resort Villas Condominium Association was joined as a defendant and challenged the second complaint as time-barred by the five-year foreclosure statute, § 95.11(2)(c), Fla. Stat. (2007).
- The trial court held the bank’s complaint was not barred and entered final judgment of foreclosure; Bollettieri appealed only the sufficiency/statute-of-limitations issue.
- The Second District affirmed, holding that alleging continued nonpayment sufficed to base foreclosure on a post-default missed installment within the five-year period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a second foreclosure complaint is time‑barred when the original default occurred more than five years before filing | Bank: Complaint alleged continuing default (no payments since 2007), so missed installments after acceleration create new actionable defaults within five years | Bollettieri: Second complaint is based on the 2007 default outside the five‑year period and thus must be dismissed (or dismissed with prejudice) | Held: Complaint sufficient; alleging continuing nonpayment permits foreclosure based on any missed installment within limitations; not barred |
| Whether a complaint that repeats the original default date but also alleges no subsequent payments is legally insufficient under Hicks | Bank: Allegation of continuing default satisfies requirement that suit be based on an act of default within five years | Bollettieri: Alleging initial default date (2007) renders complaint insufficient under Hicks | Held: Court disagreed with Hicks to extent it held such complaints insufficient; certified conflict with Fifth DCA |
Key Cases Cited
- Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957 (Fla. 5th DCA 2015) (held complaint based on an initial default outside five‑year period was insufficient)
- Singleton v. Greymar Assocs., 882 So.2d 1004 (Fla. 2004) (each alleged default creates a new independent right to accelerate and foreclose)
- Hummer v. Adams Homes of Nw. Fla., Inc., 198 So.3d 750 (Fla. 2d DCA 2016) (statute‑of‑limitations dismissal at pleading stage warranted only in extraordinary circumstances)
- Wishnatzki v. Coffman Constr., Inc., 884 So.2d 282 (Fla. 2d DCA 2004) (same standard for pleading‑stage statute‑of‑limitations dismissals)