Deutsche Bank v. Miller

239 So. 3d 789

• Court: District Court of Appeal of Florida
• Decided: March 5, 2018
• Docket: 5D17-785
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR REGISTERED HOLDERS OF LONG BEACH MORTGAGE LOAN TRUST 2006-6 ASSET-BACKED CERTIFICATES SERIES 2006-6,

Appellant,

v. Case No. 5D17-785

JAMES M. MILLER, ANGELA M. MILLER A/K/A ANGELA MARIE MILLER A/K/A ANGELA MARIE HAYES, ALL AMERICAN MANAGEMENT, FAIRWINDS CREDIT UNION, STATE OF FLORIDA, SEMINOLE COUNTY, FLORIDA,

Appellees. ________________________________/

Opinion filed March 9, 2018

Appeal from the Circuit Court for Seminole County, Jessica J. Recksiedler, Judge.

Nicholas S Agnello, Courtney Oakes and Matthew Mitchell, of Burr & Forman LLP, Ft. Lauderdale, for Appellant.

Roger A Kelly, of Rush, Marshall, Jones and Kelly, P.A., Orlando, for Appellee, James M. Miller.

No Appearance for other Appellees.

PER CURIAM. Deutsche Bank National Trust Company (“the Bank”) appeals an order granting

final summary judgment in favor of James and Angela Miller and dismissing its complaint

based on the statute of limitations. We reverse.

In May 2013, the Bank filed a foreclosure complaint against the Millers, alleging

that the Millers defaulted on their February 1, 2007 mortgage payment and all subsequent

payments. The Millers successfully moved for summary judgment, arguing that the statute

of limitations barred the Bank’s claim based on the default date alleged in the complaint.

See § 95.11(2)(c), Fla. Stat. (2013) (providing five-year statute of limitations period for

foreclosure actions).

The trial court erred in granting the motion for summary judgment based on the

statute of limitations. The Bank’s complaint was not time-barred because the Bank

alleged a continuous state of default that encompassed payments within the five years

preceding the filing of the complaint. See Velden v. Nationstar Mortg., LLC, 43 Fla. L.

Weekly D147 (Fla. 5th DCA Jan. 12, 2018); Bank of N.Y. Mellon v. Stallbaum, 230 So.

3d 1271, 1271 (Fla. 5th DCA 2017); U.S. Bank N.A. v. Diamond, 228 So. 3d 177, 178

(Fla. 5th DCA 2017); Klebanoff v. Bank of N.Y. Mellon, 228 So. 3d 167, 168 (Fla. 5th DCA

2017).

Accordingly, we reverse the entry of final summary judgment and remand for

further proceedings.

REVERSED and REMANDED.

COHEN, C.J., PALMER and BERGER, JJ., concur.