Not entitled to an award of damages for any defaults that occurred more than five years prior to the filing date of the current lawsuit.”On January 12, 2018, the Fifth District Court of Appeal, released Velden v. Natiostar Mortg., LLC ,No. 5D16-3628, 2018 WL 387243, (Fla. Dist. Ct. App. Jan. 12, 2018), in which the Court held, “that the bank was not entitled to an award of damages for any defaults that occurred more than five years prior to the filing date of the current lawsuit.” The background of this case is that Freedom Mortgage Corporation filed an action in July 2014, alleged that the borrower, Velden failed to make his February 1, 2009 mortgage payment as well as all subsequent payments. At trial the lower court entered a final judgment of foreclosure in favor of the bank, awarding the full amount of the unpaid note plus interest, dating back to January 2009. Appellant, Velden brought this appeal asserting that the trial court erred in denying the motion for involuntary dismissal because the bank’s complaint was filed more than five years after the date of the first missed payment. The Second District Court of Appeal disagreed, citing to U.S. Bank v. Diamond, 228 So. 3d 177, 178 (Fla. 5th DCA 2017). Appellant, also argued that the trial court erred in awarding the bank amounts which accrued beyond the five year limitations period, the Second District Court of Appeal agreed, citing to Bartram and Diamond. In regards, to Diamond, the Second District Court of Appeal reviewed the Fifth District Court of Appeals decision that remanded with instructions for the trial court to exclude any defaults that occurred more than five years prior to the filing date of the current suit.
Accordingly, with relying on Diamond, the Second District Court of Appeal affirmed the judgment as to liability, but reversed and remanded for the trial court to exclude an award of damages for any defaults that occurred more than five years prior to the filing date of the current lawsuit.
Can bring suit on allegations of defaults occurring subsequent to the dismissal of Plaintiff’s first cause of action. On February 28, 2018, the Fourth District Court of Appeal in HSBC Bank USA, Nat'l Ass'n for Luminent Mortg. Tr. 2007-2 v. Sanchez, No. 4D17-1085, 2018 WL 1109654, (Fla. Dist. Ct. App. Feb. 28, 2018), held that the trial court improperly dismissed the successive suit which included allegations of defaults occurring subsequent to the dismissal of Plaintiff’s first cause of action. Specifically, the trial court found that the Bank’s complaint failed to state a cause of action because the default date alleged fell during the pendency of its prior foreclosure action and dismissed the case. However, as the Bank alleged a series of payment defaults which were successive causes of action, some accruing during the pendency of the first suit, and some accruing after its dismissal, the Fourth District Court of Appeal reversed.
Complaint alleging defaults that occurred within preceding five years not time barred. On March 7, 2018, the Fourth District Court of Appeal in Desai v. Bank of New York Mellon Tr. Co., No. 4D17-0890, 2018 WL 1180539, (Fla. Dist. Ct. App. Mar. 7, 2018), held that a complaint alleging defaults that occurred within preceding five years was not time barred.
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