         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


BANK OF NEW YORK MELLON
F/K/A BANK OF NEW YORK AS
SUCCESSOR IN INTEREST TO
JPMORGAN CHASE BANK, N.A.
 AS TRUSTEE FOR STRUCTURED
ASSET MORTGAGE INVESTMENTS II,
INC., BEAR STEARNS ALT-A TRUST, ETC.,

             Appellant,

 v.                                                  Case No. 5D16-3718

DANIEL STALLBAUM,

             Appellee.

________________________________/

Opinion filed December 1, 2017

Appeal from the Circuit Court
for Brevard County,
Lisa Davidson, Judge.

J Kirby McDonough and Michael J. Labbee,
of Quarles & Brady LLP, Tampa,
for Appellant.

Mark P. Stopa, of Stopa Law Firm, Tampa,
for Appellee.


ORFINGER, J.

      Bank of New York Mellon f/k/a Bank of New York as Successor in Interest to JP

Morgan Chase Bank, N.A. as Trustee for Structured Asset Mortgage Investments II, Inc.,
Bear Stearns Alt-A Trust, Etc. (“Bank”) appeals the trial court’s summary final judgment

dismissing Bank’s foreclosure complaint based on the statute of limitations. We reverse.

       In this case, the complaint, filed on March 3, 2015, alleged that the “Note and

Mortgage are in default in that the payment due March 1, 2010 and all subsequent

payments have not been made.” The court granted summary judgment in favor of the

borrower, Daniel Stallbaum, and dismissed the complaint, ruling that the action was time-

barred because the initial default occurred more than five years before the foreclosure

action was filed.    Because the complaint alleged a continuous state of default that

included acts of default occurring within the five-year period, the statute of limitations did

not bar the complaint. See U.S. Bank N.A. v. Diamond, 42 Fla. L. Weekly D1934, D1935

(Fla. 5th DCA Sept. 1, 2017) (holding that January 2015 foreclosure complaint, alleging

that borrower defaulted on October 2009 payment and that “all subsequent payments had

not been made” was not barred by statute of limitations as lender proved that borrower’s

“default was continuing because [borrower] failed to make any mortgage payments

following the initial default date” up to time complaint was filed); Klebanoff v. Bank of N.Y.

Mellon, 42 Fla. L. Weekly D1480, D1481 (Fla. 5th DCA June 30, 2017) (holding that June

2014 foreclosure complaint that alleged borrower defaulted on March 2009 payment and

“all subsequent payments due thereafter” was not barred by statute of limitations because

it alleged mortgage “was in a continuous state of default, which included defaults within

the five-year statute of limitations . . . even if the initial default was alleged to have

occurred more than five years prior to the filing of the complaint”);1 cf. Hicks v. Wells Fargo



       1   Klebanoff and Diamond had not been issued when the trial judge ruled in this
matter.



                                              2
Bank, N.A., 178 So. 3d 957, 958-59 (Fla. 5th DCA 2015) (holding that complaint was

barred by statute of limitations even though it alleged continuous state of default because

parties stipulated before trial that complaint was based solely on initial default payment

that occurred outside five-year period).2

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

further proceedings.

       REVERSED and REMANDED.


SAWAYA and WALLIS, JJ., concur.




       2 We  reject Stallbaum’s alternate argument that we should affirm based on Bartram
v. U.S. Bank National Ass’n, 211 So. 3d 1009 (Fla. 2016), because the initial default
alleged in the present case was the same default alleged in an earlier foreclosure action
between the parties that was dismissed without prejudice. We rejected this argument
based on similar facts in Diamond, 42 Fla. L. Weekly at D1935. Accord Bank of N.Y.
Mellon Corp. v. Anton, 42 Fla. L. Weekly D1894 (Fla. 3d DCA Aug. 30, 2017) (holding
that complaint alleging default based on initial default “and all subsequent payments”
satisfied pleading requirement in Bartram). Unlike Bartram, the earlier action here was
not adjudicated on the merits.


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