Nationstar Mortgage, LLC v. Sunderman
201 So. 3d 139
Fla. Dist. Ct. App.2015Background
- Nationstar filed a foreclosure complaint on January 7, 2014, alleging default beginning May 1, 2008, and accelerating the debt.
- Two prior foreclosures on the same note/mortgage had been filed earlier: one on May 29, 2008 (dismissed without prejudice Dec. 4, 2008) and another on Oct. 30, 2009 (dismissed for failure to prosecute in 2011).
- Sunderman moved to dismiss Nationstar’s 2014 complaint as time‑barred under the five‑year statute of limitations, attaching the prior complaint and dismissal orders to the motion.
- The trial court granted the motion and dismissed Nationstar’s complaint with prejudice, finding the action barred by the statute of limitations; it denied rehearing.
- Nationstar appealed, arguing (1) a statute‑of‑limitations defense was not properly raised by motion to dismiss because it did not appear on the face of the complaint, and (2) the trial court improperly considered documents outside the four corners of the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute of limitations may be raised by motion to dismiss | Nationstar: Not here because prior suits aren’t referenced in the complaint | Sunderman: Defense appears from prior filings attached to the motion | Court: Only permissible if defense appears on the face of the complaint; it did not here |
| Whether trial court could consider prior complaints/dismissal orders on motion to dismiss | Nationstar: Court was confined to the four corners of the complaint; attachments cannot be considered to resolve SOL | Sunderman: Attached prior pleadings/orders justify dismissal | Court: Trial court erred by considering facts outside the complaint when ruling on the motion |
| Proper procedural vehicle to resolve SOL issue | Nationstar: Must raise in answer or on summary judgment where extrinsic records can be considered | Sunderman: Motion to dismiss was appropriate due to attachments | Court: Motion to dismiss improper because the complaint itself did not show the claim was time‑barred |
| Disposition of dismissal with prejudice | Nationstar: Dismissal with prejudice was erroneous due to improper procedure | Sunderman: Dismissal was warranted | Court: Reversed dismissal with prejudice and remanded; left merits of defenses open |
Key Cases Cited
- Grove Isle Ass’n, Inc. v. Grove Isle Assoc., LLLP, 137 So. 3d 1081 (Fla. 3d DCA 2014) (motion to dismiss reviewed de novo and court limited to complaint’s four corners)
- Minor v. Brunetti, 43 So. 3d 178 (Fla. 3d DCA 2010) (same rule limiting consideration on motion to dismiss)
- Pacific Ins. Co. v. Botelho, 891 So. 2d 587 (Fla. 3d DCA 2004) (motion to dismiss tests legal sufficiency and is confined to complaint)
- Gen. Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292 (Fla. 3d DCA 1993) (statute of limitations may be raised by motion to dismiss when it appears on the face of the complaint)
- Forbes v. Lehner, 151 So. 3d 31 (Fla. 3d DCA 2014) (same)
- Alexander v. Suncoast Builders, Inc., 837 So. 2d 1056 (Fla. 3d DCA 2002) (same)
- Fox v. Madsen, 12 So. 3d 1261 (Fla. 4th DCA 2009) (statute of limitations question is legal issue reviewed de novo)
- Hamilton v. Tanner, 962 So. 2d 997 (Fla. 2d DCA 2007) (same)