         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


GREG H. KLEBANOFF AND THUY
KLEBANOFF,

             Appellants,

 v.                                                    Case No. 5D16-1637

BANK OF NEW YORK MELLON, F/K/A
THE BANK OF NEW YORK, AS
TRUSTEE FOR THE
CERTIFICATEHOLDERS OF CWALT
INC., ALTERNATIVE LOAN TRUST
2006-HY11, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-HY11, ET AL,

             Appellees.

________________________________/

Opinion filed June 30, 2017

Appeal from the Circuit Court
for Flagler County,
Scott C. Dupont, Judge.

Tanner Andrews, of Tanner Andrews, P.A.,
Deland, for Appellants.

A. Donald Scott, Jr., of Clarfield, Okon,
Salomone & Pincus, P.L., West Palm
Beach, for Appellees.


EVANDER, J.

      Greg Klebanoff and Thuy Klebanoff (“the Klebanoffs”) appeal the trial court’s final

judgment of foreclosure in favor of the Bank of New York Mellon, f/k/a The Bank of New
York, as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2006-

HY11, Mortgage Pass-Through Certificates, Series 2006-HY11 (“the Bank”). On appeal,

the Klebanoffs argue that this court should reverse the final judgment of foreclosure

because the Bank’s action was barred by the applicable statute of limitations. We affirm.

       On June 26, 2014, the Bank filed a mortgage foreclosure complaint against the

Klebanoffs, alleging that “[t]here [was] a default under the terms of the Note and Mortgage

for the March 1, 2009 payment and all subsequent payments due thereafter.” The

complaint further alleged that the Bank was “declar[ing] the full amount payable under the

Note and Mortgage.” The Klebanoffs filed an answer generally denying the allegations

of the complaint and raising the statute of limitations as an affirmative defense. At trial,

the Bank presented evidence reflecting that the Klebanoffs had failed to make the March

1, 2009 payment and any payment thereafter. The trial court entered a final judgment in

favor of the Bank, and this appeal followed.

       The Klebanoffs argue that pursuant to our decision in Hicks v. Wells Fargo Bank,

N.A., 178 So. 3d 957 (Fla. 5th DCA 2015), the trial court was constrained to dismiss the

Bank’s action based on the applicable five-year statute of limitations in section

95.11(2)(c), Florida Statutes (2014). Contrary to the Klebanoffs’ contention, Hicks is

distinguishable. In Hicks, although the complaint alleged that the mortgagors were in a

continuing state of default, the parties proceeded to trial on stipulated facts that

referenced only the initial default. 178 So. 3d at 958. Specifically, the bank’s counsel

stated:

              There was a default on the loan that occurred in 2006. The
              prior holder of the note, U.S. Bank, filed a foreclosure action
              against defendants in 2006. That action was voluntarily
              dismissed in 2008.



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               In 2011, Wells Fargo, who is the current holder of the note and
               mortgage, sent a notice of intent to accelerate to the
               defendants, and then filed a new foreclosure action in 2013.

Id. (footnote omitted). We reversed the final judgment of foreclosure, concluding that the

foreclosure action should have been dismissed because it was based on a default that

occurred outside of the five-year statute of limitations. Id. at 959.

                       The dispositive facts in this appeal are not in dispute.
               Because the earlier voluntary dismissal was not an
               adjudication on the merits, Bank was entitled to bring a later
               suit to foreclose on the note and mortgage. However, the suit
               must still be based on an act of default within the five-year
               statute of limitations period. Here, Bank’s complaint was filed
               in 2013, based on an alleged default occurring on June 1,
               2006. Because trial counsel for the parties stipulated to the
               court that the facts were undisputed, with Bank’s counsel
               additionally confirming that the sole determinative issue to
               resolve at trial was one of law, the court erred when it failed
               to dismiss the foreclosure complaint with prejudice based on
               a default that occurred outside of the five-year statute of
               limitations period.

Id. (citations and footnote omitted).

       Hicks is consistent with the Third District Court of Appeal’s later opinion in Collazo

v. HSBC Bank USA, N.A., 213 So. 3d 1012 (Fla. 3d DCA 2016). In Collazo, our sister

court similarly reversed a final judgment of foreclosure because the complaint was filed

more than five years after the alleged payment default. 213 So. 3d at 1012. Notably, in

his concurring opinion, Judge Shepherd emphasized that the bank had proceeded at trial

only as to the initial default:

                      [T]he foreclosure action in the case before us was
               commenced on January 24, 2014, based on a default in
               payment alleged to have occurred on April 1, 2008. Counsel
               for HSBC insisted on trying the case on the basis of that
               default. After hearing the evidence, the trial court entered final



                                               3
              judgment and calculated all amounts due and payable based
              upon that default date over borrowers’ objections and
              involuntary dismissal motions. In short, unlike counsel for the
              lenders in both the [U.S. Bank National Association v.
              Bartram, 140 So. 3d 1007 (Fla. 5th DCA), review granted, 160
              So. 3d 892 (Fla. 2014) and Deutsche Bank Trust Company
              Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016),
              proceeding stayed, No. SC16-732 (Fla. May 31, 2017)] cases,
              who circumvented the statute of limitations in those cases by
              alleging a default within the five-year limitation period, counsel
              for HSBC, when challenged, doubled down on a stale default
              outside the limitation period.

Id. at 1013-14 (Shepherd, J., concurring).

       By contrast, in the instant case, the Bank both alleged and proved that the

Klebanoffs had defaulted on each and every mortgage payment from March 1, 2009, and

onward. Because the Bank alleged and proved missed payments within the five years

prior to the filing of its complaint, its action was not barred by the statute of limitations.

See Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 198 So. 3d 1140, 1142-

43 (Fla. 2d DCA 2016), review granted, No. SC16-1680 (Fla. Nov. 2, 2016) (holding that

although mortgagor’s initial default occurred more than five years prior to bank’s

foreclosure complaint, bank’s allegation that mortgage was currently in default and that

no payments had been made since initial default was sufficient to establish that

foreclosure could be based on any of missed payments since initial breach, and was

therefore not barred by applicable five-year statute of limitations);1 see also Dorta v.

Wilmington Tr. Nat’l Ass’n, 25 Fla. L. Weekly Fed. D267 (M.D. Fla. Mar. 24, 2014) (“While

[mortgagee] may be barred from seeking foreclosure based on defaults more than five

years old, it is not barred from seeking foreclosure or from invoking its right to accelerate



       1Although Bollettieri certified conflict with Hicks, for the reasons indicated above,
we believe that those two cases are not in conflict.


                                              4
the entire indebtedness based on more recent defaults . . . .”); Bartram v. U.S. Bank Nat’l

Ass’n, 211 So. 3d 1009, 1011 (Fla. 2016) (“Once there were future defaults, however, the

Bank had the right to file a subsequent foreclosure action—and to seek acceleration of

all sums due under the note—so long as the foreclosure action was based on a

subsequent default, and the statute of limitations had not run on that particular default.”).

       Because the Bank alleged and proved that the subject mortgage was in a

continuous state of default, which included defaults within the five-year statute of

limitations, its action was not barred, even if the initial default was alleged to have

occurred more than five years prior to the filing of the complaint.

       AFFIRMED.


COHEN, C.J. and EDWARDS, J., concur.




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