Klebanoff v. Bank of New York Mellon
228 So. 3d 167
Fla. Dist. Ct. App.2017Background
- The Bank filed a foreclosure complaint on June 26, 2014, alleging the Klebanoffs defaulted beginning March 1, 2009 and thereafter, and sought acceleration and foreclosure.
- The Klebanoffs answered, generally denying allegations and asserting the five-year statute of limitations as an affirmative defense.
- At trial the Bank produced evidence showing missed payments from March 1, 2009 forward — i.e., a continuous/default including missed payments within five years of filing.
- The trial court entered final judgment of foreclosure for the Bank; the Klebanoffs appealed solely arguing the action was time-barred.
- The Fifth District affirmed, holding that proof of continuing defaults (including ones within the five-year limitations period) precludes dismissal under the five-year statute of limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether foreclosure was barred by the five-year statute of limitations | Bank: Complaint alleged continuing default, including payments missed within five years | Klebanoff: Action was time-barred because initial default occurred more than five years before suit | Court: Not barred — Bank alleged and proved continuous defaults including within five years |
| Whether Hicks v. Wells Fargo requires dismissal here | Klebanoff: Hicks requires dismissal where complaint relies on stale default | Bank: Hicks is distinguishable because Hicks rested on an agreed stipulation to the initial (stale) default only | Court: Distinguished Hicks — here evidence supported recent defaults, unlike the stipulation in Hicks |
Key Cases Cited
- Hicks v. Wells Fargo Bank, N.A., 178 So. 3d 957 (Fla. 5th DCA 2015) (reversed foreclosure where parties tried the case on an undisputed stale default)
- Collazo v. HSBC Bank USA, N.A., 213 So. 3d 1012 (Fla. 3d DCA 2016) (reversed where foreclosure was based solely on a default more than five years old)
- Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 198 So. 3d 1140 (Fla. 2d DCA 2016) (holding alleged continuous default with missed payments within five years supports foreclosure)
- Bartram v. U.S. Bank Nat’l Ass’n, 211 So. 3d 1009 (Fla. 2016) (explaining a later foreclosure may proceed if based on a subsequent default within the limitations period)
- Deutsche Bank Trust Co. Ams. v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016) (discussed in context of strategies to avoid statute of limitations by alleging recent defaults)