              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT


U.S. BANK, N.A., Successor Trustee to       )
LaSalle Bank National Association, on       )
behalf of the holders of Bear Stearns Asset )
Backed Securities I Trust 2005-HE7, Asset- )
Backed Certificates Series 2005-HE7,        )
                                            )
              Appellant,                    )
                                            )
v.                                          )       Case No. 2D17-3262
                                            )
ANA GONZALES; ANGEL CASIANO; and )
SUMMERFIELD MASTER COMMUNITY )
ASSOCIATION, INC.,                          )
                                            )
              Appellees.                    )
                                            )

Opinion filed May 2, 2018.

Appeal from the Circuit Court for
Hillsborough County; Mark D. Kiser and
Paul L. Huey, Judges.

Adam J. Knight and Jacqueline Simms-
Petredis of Burr & Forman LLP, Tampa, for
Appellant.

No appearance for Appellees.



BLACK, Judge.

             U.S. Bank, N.A., Successor Trustee to LaSalle Bank National Association,
on behalf of the holders of Bear Stearns Asset Backed Securities I Trust 2005-HE7,

Asset-Backed Certificate Series 2005-HE7 (U.S. Bank), appeals from the order

dismissing with prejudice its mortgage foreclosure action against Ana Gonzales and

Angel Casiano (the homeowners), arguing that the trial court erred in determining that

the complaint was barred by the statute of limitations.1 We agree and reverse.

              On February 25, 2016, U.S. Bank filed an action against the homeowners

to enforce a promissory note and foreclose a mortgage, alleging that the homeowners

defaulted on the note and mortgage by failing to make "the payment due for August 1,

2010, and all subsequent payments." The homeowners filed a motion to dismiss the

foreclosure complaint, alleging, in relevant part, that the complaint failed to state a

cause of action because it had not been filed within five years of the initial default date

alleged. See § 95.11(2)(c), Fla. Stat. (2010).2 The trial court entered an order granting




              1The    homeowners did not participate in this appeal.
              2U.S.   Bank contends that a motion to dismiss was not the proper vehicle
to raise the statute of limitations defense in this case. It is true that "[o]rdinarily, the
statute of limitations is an affirmative defense; however, an affirmative defense
appearing on the face of a prior pleading may be asserted as a ground for a motion to
dismiss under Florida Rule of Civil Procedure 1.140(b)." Hofer v. Ross, 481 So. 2d 939,
940 (Fla. 2d DCA 1985) (citing Fla. R. Civ. P. 1.110(d)); accord Williams v. City of
Jacksonville, 191 So. 3d 925, 927-28 (Fla. 1st DCA 2016). Because the applicability of
the five-year statute of limitations could be "conclusively established by the facts
pleaded in the [foreclosure] complaint," it was properly "alleged as [a] ground[] for [the]
motion to dismiss" in this case. See Levine, Zweibach, Davis, P.A. v. Levine, 734 So.
2d 1191, 1195 (Fla. 2d DCA 1999); compare Gen. Motors Acceptance Corp. v.
Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993) ("Where, as here, the statute of
limitations defense appears on the face of the complaint, it is permissible to assert the
statute of limitations defense by motion to dismiss."), with Wishnatzki v. Coffman
Constr., Inc., 884 So. 2d 282, 285 (Fla. 2d DCA 2004) ("Considering the complaint on
its face, we cannot say as a matter of law that the limitations period commenced to run
in 1988 when the Homeowner first experienced 'problems with the roof.' Further facts
may or may not establish that other problems around the windows or in the walls

                                             -2-
the motion to dismiss based solely on the finding that the action was barred by the

statute of limitations and directed the clerk to close the file. In dismissing the complaint,

the trial court relied upon Hicks v. Wells Fargo Bank, N.A., 178 So. 3d 957 (Fla. 5th

DCA 2015). Despite the fact that the complaint in Hicks alleged a continuing state of

default—just like the complaint in this case—the Fifth District held that the complaint

should have been dismissed because the initial default date alleged in the complaint

occurred outside of the five-year statute of limitations. Id. at 959. However, as clarified

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

parties in Hicks "proceeded to trial on stipulated facts that referenced only the initial

default." Hicks is therefore distinguishable from this case.

               As this court has repeatedly held, alleging "a continuing state of default at

the time of the filing of the complaint [is] sufficient to satisfy the . . . statute of

limitations." Huntington Nat'l Bank v. Watters, 228 So. 3d 595, 596 (Fla. 2d DCA 2017)

(alteration in original) (quoting Desylvester v. Bank of N.Y. Mellon ex rel. Holders of Alt.

Loan Tr. 2005-62, Mortg. Pass-Through Certificates Series 2005-62, 219 So. 3d 1016,

1020 (Fla. 2d DCA 2017)); accord Bollettieri Resort Villas Condo. Ass'n v. Bank of N.Y.

Mellon, 198 So. 3d 1140, 1142 (Fla. 2d DCA 2016), review dismissed, 228 So. 3d 72

(Fla. 2017). Although the initial alleged default date of August 1, 2010, occurred more

than five years prior to the filing of the foreclosure complaint on February 25, 2016,

because the statute of limitations runs from the date of each new default and the

complaint alleged a continuing state of default since August 1, 2010, U.S. Bank's



constituted unrelated defects of which the Homeowner did not have notice until well
after 1988.").



                                               -3-
complaint was sufficient to establish that foreclosure could be based on any default that

was within the statutory period. See Bollettieri Resort Villas Condo. Ass'n, 198 So. 3d

at 1142. Because U.S. Bank's foreclosure action was not time-barred, we reverse the

order of dismissal and remand for further proceedings.3

              Reversed and remanded.



CASANUEVA and SILBERMAN, JJ., Concur.




              3Because    the court's dismissal was based solely on the homeowners'
statute of limitations argument, it is not appropriate for this court to address U.S. Bank's
contention that the homeowners failed to raise any other viable basis to support
dismissal.

                                            -4-
