U.S. Bank, N.A. v. Diamond
228 So. 3d 177
| Fla. Dist. Ct. App. | 2017Background
- Bank (U.S. Bank, N.A.) sued homeowners (David and Janet Diamond) on a mortgage note that required interest-only payments for the first ten years, then principal amortization.
- Bank first sued to foreclose in 2010, alleging default for the October 2009 payment; that action was dismissed.
- Bank filed a second foreclosure action in January 2015, again alleging the October 2009 default and that no subsequent payments had been made.
- At trial the court initially entered judgment for the Bank; after rehearing the trial court dismissed the complaint as time-barred under the five-year statute of limitations, because the alleged date of default (October 2009) was more than five years before the 2015 suit.
- The Fifth District reversed, holding the Bank demonstrated a continuing default (missed monthly installments through the time of filing), so defaults within five years of filing gave rise to timely causes of action; Bank conceded it could not recover for installments older than five years.
- Court remanded with instruction to vacate dismissal, enter judgment for Bank excluding pre-limitations defaults, and awarded appellate fees to Bank for determination by the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a foreclosure action is time-barred when the complaint alleges an initial default more than five years before filing | Bank: Alleging a continuing default (missed payments through filing) creates timely causes of action for each installment within five years | Homeowners: The identified date of default was stale (over five years), so the suit is barred by § 95.11(2)(c) | Reversed: continuous/multiple defaults produce new causes of action; claims for defaults within five years are timely; claims older than five years are barred |
Key Cases Cited
- U.S. Bank Nat’l Ass’n v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014) (each missed installment creates a new cause of action for statute of limitations purposes)
- Bartram v. U.S. Bank Nat’l Ass’n, 211 So. 3d 1009 (Fla. 2016) (Florida Supreme Court approving that each subsequent default restarts limitations for that installment and confirming mortgagee’s right to accelerate)