FLAGLER COUNTY — The 5th District Court of Appeal has affirmed a trial court ruling that a Florida couple's foreclosure was not outside the statute of limitations.

Greg and Thuy Klebanhoff appealed a foreclosure following a trial court’s ruling in favor of the Bank of New York Mellon. The Klebanhoffs were seeking to have the final judgment of foreclosure reversed because the bank allegedly didn’t act within its statute of limitations, according to court records. 

The bank filed a foreclosure against the Klebanhoffs on June 26, 2014, alleging “[t]here [was] a default under the terms of the Note and Mortgage for the March 1, 2009 payment” and all subsequent payments. The foreclosure filing claimed the Klebanhoffs were responsible for the “full amount payable under the Note and Mortgage.” 

The Klebanhoffs argued the bank was outside of the statute of limitations. 

The bank showed the Klebanhoffs missed each payment, beginning March 1, 2009, according to court documents. The trial court ruled in favor of the bank. 

On appeal, the Klebanhoffs used Hicks v. Wells Fargo Bank, N.A. to argue their case that the bank did not act under the five-year statute of limitations. The appeals court said that case is different, as the parties involved only proved the first payment was in default, so the court had reversed the trial court’s foreclosure ruling for Hicks because the initial default was not within the five-year statute of limitations.

The court also wrote that the bank proved the Klebanhoffs defaulted on not only the initial March 1, 2009, payment but also on each one thereafter, and that the bank provided evidence that payments were missed no more than five years before it filed its compliant, showing it was within the statute of limitations when it filed the foreclosure.

The appeals court affirmed the trial court’s decision. 

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