Kebreau v. Bayview Loan Servicing, LLC
225 So. 3d 255
Fla. Dist. Ct. App.2017Background
- Homeowner appealed a final judgment of foreclosure challenging statute of limitations and validity of her deed to the property.
- Foreclosure complaint alleged an initial default in July 2010 and also alleged failure to make subsequent payments up to the time of filing.
- Homeowner argued the deed’s legal description was defective and thus she never acquired legal title, invalidating the mortgage.
- Homeowner did not raise the deed-defect defense in her answer at trial.
- Appellee sought attorney’s fees in the final judgment; no counsel testimony quantified time or fees.
- Court affirmed the foreclosure except it reversed the attorney’s fees award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations on foreclosure | Complaint is time-barred because alleged initial default occurred >5 years before filing | Complaint alleges continuing defaults including within 5 years of filing | Allegation of continuing default satisfies the five-year statute of limitations; claim not barred |
| Validity of mortgage based on deed defect | Mortgage invalid because homeowner never acquired legal title due to defective legal description | Mortgage valid; homeowner waived defense and after-acquired title doctrine cures defect | Homeowner waived the defense by not pleading it; after-acquired title doctrine cures the deed defect |
| Waiver of deed-defect defense | Defense is timely and substantive | Homeowner failed to raise defense in answer; waived it | Defense waived for failure to plead; court relies on waiver |
| Attorney’s fees award | Fees were properly awarded in final judgment | Insufficient evidence of time/fees; appellee concedes lack of proof | Fees award reversed due to lack of evidentiary support |
Key Cases Cited
- Bollettieri Resort Villas Condominium Ass’n, Inc. v. Bank of New York Mellon, 198 So.3d 1140 (Fla. 2d DCA 2016) (continuing-default allegations satisfy five-year limitations period)
- Desylvester v. Bank of New York Mellon, 219 So.3d 1016 (Fla. 2d DCA 2017) (same holding on continuing default)
- Deutsche Bank Tr. Co. Ams. v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016) (en banc) (continuing-default tolling of limitations)
- Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957 (Fla. 5th DCA 2016) (contrary view on continuing-default allegations and limitations)
- Kaan v. Wells Fargo Bank, N.A., 981 F.Supp.2d 1271 (S.D. Fla. 2013) (federal decision applying continuing-default concept)
- Heartwood 2, LLC v. Dori, 208 So.3d 817 (Fla. 3d DCA 2017) (failure to plead affirmative defense results in waiver)
- Layne v. Layne, 74 So.3d 161 (Fla. 1st DCA 2011) (after-acquired title doctrine applies to correct defects)
- BMCL Holding LLC v. Wilmington Tr., N.A., 201 So.3d 109 (Fla. 3d DCA 2015) (after-acquired title doctrine applies to mortgages)
- Rose v. Lurton Co., 149 So. 557 (Fla. 1933) (early articulation of after-acquired title doctrine)