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. 5D 16

- 3718 DANIEL STALLBAUM ,

Appellee

. ________________________________/ Opinion filed December 1, 2 017 Appeal from the Circuit Court for Brevard County , Lisa Davidson , Judge.
J K irby Mc D onough and Michael J. Labbee , of Quarles & Brady LLP, Tam pa, 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 C hase Bank, N.A. as Trustee for Structured Asset Mortgage Investments II, Inc.,2

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, t he 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 t he initial default occurred more than five years before the foreclosure
action was filed

. Because the complaint alleged a continuous state of default that
inc luded 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 default ed on October 2009 payment and that “all subsequent payments had
not been made” was not barred b y statute of limitations as lender proved that borrower’s “default was continuing because [ borrower ] failed to make any mortgage p ayments 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 default ed on Marc h 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 in itial 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.3

Bank, N.A. , 178 So. 3d 957 , 958

- 59 (Fla. 5th DCA 2015) (holding that complaint was barred by statute of limitations even thoug h it alleged continuous state of default because parties stipulat ed 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

. W e rejected this argument based on similar facts in Diamond , 42 Fla. L. Weekly at D1935

. A ccord Bank of N.Y. Mellon Corp. v. Anton , 42 Fla. L. Weekly D 1894 (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 Ba rtram , t he earlier action here was not adjudicated on the merits.