News + updates + recent press
Trending Cases: Statute of Limitations
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.
QUESTIONS? Contact Marissa Yaker, Esq. | email@example.com
Comments are closed.
PLG BLOG DISCLAIMER
The information contained on this blog shall not constitute legal advice or a legal opinion. The existence of or review and/or use of this blog or any information hereon does not and is not intended to create an attorney-client relationship. Further, no information on this blog should be construed as investment advice. Independent legal and financial advice should be sought before using any information obtained from this blog. It is important to note that the cases are subject to change with future court decisions or other changes in the law. For the most up-to-date information, please contact Padgett Law Group (“PLG”). PLG shall have no liability whatsoever to any user of this blog or any information contained hereon, for any claim(s) related in any way to the use of this blog. Users hereby release and hold harmless PLG of and from any and all liability for any claim(s), whether based in contract or in tort, including, but not limited to, claims for lost profits or consequential, exemplary, incidental, indirect, special, or punitive damages arising from or related to their use of the information contained on this blog or their inability to use this blog. This Blog is provided on an "as is" basis without warranties of any kind, either express or implied, including, but not limited to, warranties of title or implied warranties of merchantability or fitness for a particular purpose.