201901.23
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NEW PRECEDENT ESTABLISHED IN FLORIDA | Key Points

  1. Last month the Fifth DCA receded from its two prior opinions wherein it held the statute of limitations prevented a lender from recovering damages in a foreclosure action “for defaults that occurred more than five years prior to the filing date of the lawsuit.” Grant v. Citizens Bank, N.A., 5D17-726, 2018 WL 6816805, at *1 (Fla. 5th DCA Dec. 26, 2018). In Grant, the borrower (“Grant”) defaulted on his note and mortgage in May 2009 and the bank filed its third foreclosure action against him in November 2015. Grant relied on the statute of limitations to argue the bank was prevented from “collecting any amounts due on the note and mortgage” which accrued more than five years before the bank filed its third foreclosure action. The trial court disagreed and entered judgment in favor of the bank awarding interest that accrued from May 2009, more than five years from the date the complaint was filed.
  2. On appeal the Fifth DCA affirmed the bank’s final judgment in part. It reversed that portion of the judgment which awarded interest from May 2009 due to the bank’s failure to plead entitlement to such relief in its complaint. Notably, the Court explained the bank would have been entitled to interest from May 2009, more than five years from the filing of the complaint, had the bank properly requested such relief. The Fifth DCA explained it was receding from its prior decisions and adopting the Florida Supreme Court’s logic and holdings in Bartram and Bollettieri. The Court concluded that forbearance did “not constitute a waiver or defense against future collection of all sums due…under the note” even though the bank opted to accelerate the loan more than five years after Grant’s initial payment default. (Emphasis added).

The fact the Fifth DCA explained the bank’s damages would not be limited to those incurred within five years of filing its complaint (had the bank pled such relief) is significant. The holding in Grant resolved an interdistrict conflict[i] on this issue. Now the Second[ii], Third[iii] and Fifth DCAs all agree that the bank’s damages in foreclosure cases will not be limited to those accrued within five years of filing the complaint. Due to the lack of an interdistrict conflict on this issue, all Florida trial courts are now bound to follow Grant. Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). The Grant holding should curtail future litigation regarding the applicability of the statute of limitations in the foreclosure context.


[i] The Florida Supreme Court recognized the conflict between the districts regarding the applicability of the five-year statute of limitations was resolved in Bollettieri when it declined to review the case: “After further consideration…we have determined that the certified conflict has been resolved, and we conclude that we should exercise our discretion and decline review.” Bollettieri,228 So. 3d at 73.

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[ii] The Second DCA rendered a similar holding in Bollettieri, 198 So. 3d at 1142.

[iii] Gonzalez v. Fed. Nat’l Mortgage Ass’n, 43 Fla. L. Weekly D1739 (Fla. 3d DCA Aug. 1, 2018).