U.S. BANK HOME MORTGAGE, U.S. BANK NATIONAL ASSOCIATION v. BOIVIN, VANDERBURG

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

U.S. BANK HOME MORTGAGE, A

DIVISION OF U.S. BANK NATIONAL

ASSOCIATION,

Appellant,

v.

ROBERT BOIVIN a/k/a ROBERT J. BOIVIN;

THERESA L. BOIVIN; WILLIAM O. VANDERBURG;

TIFFANY L. VANDERBURG; MR. LOWE LLC;

and CITY OF LARGO,

Appellees.

No. 2D2023-2239

February 14, 2025

Appeal from the Circuit Court for Pinellas County; Amy Williams, Judge.

David Rosenberg of Robertson, Anschutz, Schneid, Crane & Partners,

PLLC, Boca Raton, for Appellant.

Thomas O. Michaels of Thomas O. Michaels, P.A., Dunedin, for Appellees

Robert Boivin a/k/a Robert J. Boivin and Theresa L. Boivin.

Samuel J. Heller of Older Lundy Koch & Martino, St. Petersburg, for

Appellees William O. Vanderburg and Tiffany L. Vanderburg.

No appearance for remaining Appellees.

MORRIS, Judge.

U.S. Bank Home Mortgage, a division of U.S. Bank National

Association (hereinafter the mortgagee), appeals from a final judgment

entered in the mortgagee's foreclosure action in favor of appellees,

William O. Vanderburg and Tiffany L. Vanderburg. 1 Because we

conclude that the trial court erred in entering the final judgment, we

reverse.

BACKGROUND

Robert J. Boivin, Theresa L. Boivin, and Maurice Boivin were the

original owners of the property in question. The mortgagee provided a

loan for the property to Maurice Boivin in his sole capacity, and the

Boivins, collectively, executed a mortgage to secure the loan.2 The

mortgage had a maturity date of July 1, 2036, 3 and it was recorded in

the official records of Pinellas County. The mortgage states, in relevant

part, that upon default by the borrower, the mortgagee has the option to

accelerate payment of the full loan balance and to foreclose on the

property. The mortgage also provides that the mortgagee's decision to

forgo acceleration and foreclosure at the time of the borrower's default

does not waive the mortgagee's right to later accelerate and to foreclose.

1 Our record contains a suggestion of death indicating that Mrs.

Vanderburg passed away prior to trial. However, the final judgment was

still entered in her and Mr. Vanderburg's favor.

2 We note that Robert J. Boivin and Theresa L. Boivin have no

personal liability under the note and that the final judgment was entered

only in favor of the Vanderburgs. The Boivins were not referenced in the

final judgment.

3 Two loan modifications extended the maturity date to October

2041. However, they were not recorded at the time the Vanderburgs

purchased the property and thus are not relevant to the issue in this

case. We will refer to the July 2036 maturity date throughout this

opinion.

2

In January 2009 and again in August 2011, the mortgagee filed

foreclosure actions against the Boivins. The first action was dismissed

pursuant to a settlement, and the second action was dismissed for lack

of prosecution.

The City of Largo instituted its own foreclosure proceeding against

the Boivins based on a code enforcement lien that had been filed against

the property.4 Initially, the mortgagee was named as a defendant in the

City's action, but during the pendency of that action, the mortgagee was

dropped as a defendant for unknown reasons. In January 2020 the

Vanderburgs purchased the property at a judicial foreclosure sale

resulting from the City's foreclosure action. The Vanderburgs took title

to the property on February 3, 2020, and the mortgagee filed a third

foreclosure action against the Boivins on February 12, 2020.

In October 2021 the mortgagee filed an amended complaint naming

the Vanderburgs as defendants and property owners. 5 The complaint

alleged that the loan had been in default since August 2010. In their

answer and affirmative defenses, the Vanderburgs asserted an

affirmative defense of laches, alleging that the mortgagee "slept on [its]

right to foreclose" and that the foreclosure of the property would

prejudice them. The Vanderburgs alleged that they had expended money

on the property.

4 In its brief, the mortgagee asserts that the City was a junior

lienholder, and the Vanderburgs do not dispute that assertion.

5 Due to the minimal amount of time between the Vanderburgs

taking title to the property and the mortgagee's filing of the foreclosure

action, the mortgagee's title report did not disclose the Vanderburgs'

purchase of the property. Thus the Vanderburgs were not named as

defendants in the initial complaint.

3

At the nonjury trial, Mr. Vanderburg was the main witness for the

defense. Mr. Vanderburg acknowledged that he did not contest the

validity of the mortgage between the mortgagee and the Boivins. But in

presenting his affirmative defense of laches, he argued that the

mortgagee waited from 2013, when the second foreclosure action was

dismissed, until 2020 to bring the third foreclosure action and that the

mortgagee only filed the third foreclosure action after the Vanderburgs

had purchased the property and expended a large amount of money on it

by paying for repairs, insurance, and taxes.

Mr. Vanderburg was familiar with checking for liens on properties

due to his position as a building inspector, and before purchasing the

subject property, he performed a title search on it. Mr. Vanderburg

admitted that the title search reflected the existence of the mortgage.

However, Mr. Vanderburg asserted that he did not realize that there had

been prior foreclosure actions on the property and that if he had known

such information, he would not have purchased the property. He

testified that the "[t]itle company did not have that information," but he

admitted that he did not check the court docket to see if there had been

any prior foreclosure actions.

In rebuttal, the mortgagee's witness testified about the reasons why

the mortgagee did not accelerate the note and foreclose prior to 2020.

She testified that before 2015, the mortgagee was communicating with

the Boivins about possible "home retention options." Maurice Boivin

passed away during that time so the mortgagee was working with his

heirs. There were several holds put on the file for various reasons, and

the witness testified that the mortgagee was required to wait to foreclose

until any holds were removed. The witness testified that at the time of

the filing of the third foreclosure action, the mortgagee was not aware

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that the Vanderburgs purchased the property; the mortgagee also never

asked the Vanderburgs to repair the property, nor did the mortgagee

know that the Vanderburgs were doing so.

During closing arguments, the mortgagee argued that the doctrine

of caveat emptor—"let the buyer beware"—applied and that the

affirmative defense of laches should not apply. The mortgagee asserted

that the Vanderburgs did not conduct their due diligence to investigate

whether there was a lien on the property and that since the mortgage

had a maturity date of July 2036, the mortgagee could enforce the note

at any time until that date.

Ultimately, the trial court concluded that laches did apply. The

trial court noted that the Vanderburgs had expended money on

improving the property. The trial court found that the mortgagee had

delayed in foreclosing on the property; this was based on the facts that

the loan had been in default since 2010 and that the prior foreclosure

action had been dismissed in 2013. A final judgment was entered in

favor of the Vanderburgs. The mortgagee filed a motion for rehearing

which was denied. This appeal follows.

ANALYSIS

A trial court's determination that the doctrine of laches applies is

reviewed for abuse of discretion as long as there is competent,

substantial evidence to support each element of the doctrine. See Holley

v. Erwin-Jenkins, 369 So. 3d 1218, 1223 (Fla. 2d DCA 2023).

"The passage or lapse of time alone is insufficient to support the

finding of laches." Wagner v. Moseley, 104 So. 2d 86, 92 (Fla. 2d DCA

1958). "Laches is based upon an unreasonable delay in asserting a

known right which causes undue prejudice to the party against whom

the claim is asserted." Gratkowski v. ASI Preferred Ins. Corp., 351 So. 3d

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1216, 1221 (Fla. 2d DCA 2022). "[L]aches is an affirmative defense, and

the burden of proof is on the party asserting it; it must, moreover, be

proved by very clear and positive evidence." Id. (quoting Smith v. Branch,

391 So. 2d 797, 798 (Fla. 2d DCA 1980)).

For laches to be applicable, Mr. Vanderburg was required to prove:

(1) conduct by the defendant that gives rise to the complaint;

(2) that the plaintiff had knowledge of the defendant's conduct

and did not assert the opportunity to institute suit; (3) lack of

knowledge by the defendant that the plaintiff will assert the

right upon which suit is based; and (4) extraordinary injury or

prejudice.

Holley, 369 So. 3d at 1223 (quoting Ticktin v. Kearin, 807 So. 2d 659,

664 (Fla. 3d DCA 2001)). All of the elements must be proven in order for

the doctrine to be applicable. See Fla. Bar v. Lipman, 497 So. 2d 1165,

1167 (Fla. 1986) (relying on Fla. Bar v. McCain, 361 So. 2d 700, 705-06

(Fla. 1978)).6

6 Mr. Vanderburg argues that the mortgagee failed to preserve its

arguments regarding whether Mr. Vanderburg presented sufficient

evidence of each element of the laches defense. Mr. Vanderburg

contends that the mortgagee confined its argument to whether the rule of

caveat emptor applies. However, our review of the transcript reflects that

the mortgagee tied its argument about caveat emptor to the issue of

whether laches had been sufficiently proven. Specifically, the mortgagee

presented arguments about the reason for the delay in filing the third

foreclosure action (second element) and whether the Vanderburgs

exercised due diligence to determine if there had been a prior foreclosure

action and if the mortgagee intended to foreclose in the future (third and

fourth elements). Though the mortgagee may not have used the term

"sufficiency of the evidence" or specifically referred to the elements of the

laches defense, we construe its arguments as addressing those issues.

We further note that in its motion for rehearing, the mortgagee

specifically addressed the elements of unreasonable delay and prejudice.

But in any event, in a foreclosure action, "a sufficiency of the evidence

claim may be raised for the first time on appeal." Colson v. State Farm

Bank, F.S.B., 183 So. 3d 1038, 1040 (Fla. 2d DCA 2015); see also

Lacombe v. Deutsche Bank Nat'l Tr. Co., 149 So. 3d 152, 153 (Fla. 1st

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Here, Mr. Vanderburg failed to meet his burden of proving all of the

elements. Mr. Boivin had already defaulted on the mortgage in August

2010, which constitutes conduct by the defendant giving rise to the

complaint (i.e., the first element). 7 The Vanderburgs, as subsequent

purchasers, were indispensable parties to any ensuing foreclosure

action. See English v. Bankers Tr. Co. of Cal., N.A., 895 So. 2d 1120,

1121 (Fla. 4th DCA 2005) (explaining that an owner of the fee simple title

is an indispensable party to a foreclosure action (citing Cmty. Fed. Sav. &

Loan Ass'n v. Wright, 452 So. 2d 638, 640 (Fla. 4th DCA 1984))).

DCA 2014) (explaining that Florida Rule of Civil Procedure 1.530(e)

"applies to appeals challenging the sufficiency of the evidence in

mortgage foreclosure actions after bench trial" and that in such a case,

"the general rule requiring specific contemporaneous objection to

preserve the asserted error for appeal does not apply"). Thus we find no

merit to Mr. Vanderburg's preservation argument.

7 We note that the mortgagee asserts that the conduct giving rise to

the complaint occurred in February 2020 at the time of filing its third

foreclosure action because that is when it accelerated the loan. Mr.

Vanderburg, on the other hand, asserts that the conduct giving rise to

the complaint occurred on August 1, 2010, when Mr. Boivin first

defaulted on the loan. We agree with Mr. Vanderburg. The mortgagee

relies on case law for the proposition that its right to foreclose accrued at

the time of filing its third foreclosure action because that is when the last

element of the cause of action occurred (i.e., when it accelerated the

loan). We do not disagree with that general principle, but the issue is

whether Mr. Vanderburg presented sufficient proof of all of the elements

of a laches defense. The accrual of the cause of action here is more

properly addressed within the context of whether the mortgagee

unreasonably delayed in instituting its suit, the second element of a

laches defense. Indeed, when the trial court mentioned the date of

default, it was addressing the length of time between that date, the

dismissal of the second foreclosure action, and the filing of the third

foreclosure action before ultimately concluding that the mortgagee

unreasonably delayed in filing the third foreclosure action. But as will be

explained, the proof of the first element of a laches defense does not

change the disposition of this case.

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The second element addresses any delay by a plaintiff. The length

of time between when a right accrues and when that right is asserted

must be measured in order to determine if a party delayed in initiating a

suit. See Bethea v. Langford, 45 So. 2d 496, 498 (Fla. 1949). Here, the

trial court focused on the length of time between the Boivins' default, the

2013 dismissal of the second foreclosure action, and the filing of the

third foreclosure action in 2020. But the accrual of the mortgagee's

cause of action was neither based on the date of default nor the

dismissal of the second foreclosure action.

A cause of action for foreclosure accrues on the maturity date of

the loan unless the lender elects to accelerate at an earlier date. See

Bollettieri Resort Villas Condo. Ass'n v. Bank of N.Y. Mellon, 228 So. 3d

72, 74-75 (Fla. 2017) (Lawson, J., concurring); see also Nationstar Mortg.,

LLC v. McDaniel, 288 So. 3d 1235, 1236 (Fla. 5th DCA 2020) (reciting the

four elements of a cause of action for foreclosure, including the

acceleration of the loan); § 95.031(1), Fla. Stat. (2023) ("A cause of action

accrues when the last element constituting the cause of action occurs.").

And where a borrower remains in a constant state of default, a lender is

entitled to file a subsequent foreclosure action with each subsequent

default provided that the applicable statute of limitations has not run.

See Grdic v. HSBC Bank USA, N.A. as Tr. for Registered Holders of Ace

Secs. Corp., 267 So. 3d 473, 476 (Fla. 2d DCA 2019) (citing Bartram v.

U.S. Bank, Nat'l Ass'n, 211 So. 3d 1009, 1021 (Fla. 2016)).

Here, the mortgage expressly contains an acceleration clause that

provided the mortgagee with the option of accelerating the note and

foreclosing upon Mr. Boivin's default rather than a requirement to do so.

The mortgage also specifically addresses the mortgagee's right to forgo

acceleration and foreclosure at the time of the borrower's default without

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waiving the mortgagee's right to later accelerate and to foreclose. The

mortgagee had the right to foreclose on the mortgage until July 1, 2036.

The mortgagee accelerated the amount due under the note and filed the

third foreclosure action on February 12, 2020. Thus, the date of accrual

of the mortgagee's cause of action was the date it filed the third

foreclosure action: February 12, 2020. It cannot be said that the

mortgagee unreasonably delayed in initiating its suit when it had more

than sixteen years remaining before the loan's maturity date. The fact

that the mortgagee waited several years after the dismissal of the second

foreclosure action to file its third foreclosure action matters not because

the terms of the mortgage contained a nonwaiver provision and because

the loan had not yet matured. Thus the trial court erred in determining

that the mortgagee unreasonably delayed in initiating the third

foreclosure action, and it abused its discretion in entering final judgment

in favor of the Vanderburgs.

Because proof of all of the elements of laches must be proven in

order for the doctrine to apply, the trial court's error in determining that

the mortgagee unreasonably delayed initiating the third foreclosure

action is enough to mandate reversal. However, Mr. Vanderburg failed to

prove a lack of knowledge and prejudice as well (i.e, the third and fourth

elements).

Mr. Vanderburg acknowledged that he was aware of the existing

mortgage when he and his wife purchased the property. However, he

testified that he was not aware of the prior foreclosure actions and that if

he had been, he would not have gone through with the purchase. But

not only did Mr. Vanderburg admit having actual knowledge of the

existing mortgage, he also had, at the very least, constructive notice of its

contents. See Regions Bank v. Deluca, 97 So. 3d 879, 883-85 (Fla. 2d

9

DCA 2012) (explaining that "[c]onstructive notice is a legal inference, and

it is imputed to . . . subsequent purchasers" due to the relevant

documents being filed in the official records and further explaining that

the recording of a mortgage provides constructive notice of both the

existence of the instrument and its contents (quoting Dunn v. Stack, 418

So. 2d 345, 349 (Fla. 1st DCA 1982))). Knowledge of the contents of a

mortgage is imputed to a purchaser because "an examination of these

documents prior to a transfer of the real property is entirely expected."

M/I Schottenstein Homes, Inc. v. Azam, 813 So. 2d 91, 95 (Fla. 2002).

And here, the recorded mortgage clearly reflects the acceleration clause

and nonwaiver provision. Thus knowledge of these provisions is imputed

to Mr. Vanderburg. Having imputed knowledge that the mortgagee had

the option to accelerate the loan and foreclose through July 2036, Mr.

Vanderburg cannot establish that he lacked knowledge that the

mortgagee had the option to foreclose at some point after he and his wife

purchased the property. Indeed, Mr. Vanderburg never established that

he had been given reason to believe that the mortgage would never be

foreclosed. Cf. Smith, 391 So. 2d at 798 (concluding in relevant part that

the appellee could not claim a lack of knowledge as an element of laches

where he was well aware of the existence of the mortgage in question and

where he "did not establish that he had ever been given reason to believe

that the mortgage would not ever be foreclosed").

Furthermore, because Mr. Vanderburg admitted that he was

unaware of the prior foreclosure actions, he cannot establish that he and

his wife were prejudiced by any delay by the mortgagee in filing the third

foreclosure action. Mr. Vanderburg was aware of the existing mortgage

which gave the mortgagee the right to foreclose up until the date of

maturity of the loan. If Mr. Vanderburg was unaware of the prior

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foreclosure actions, then he had no reason to believe the mortgagee was

failing to exercise its legal rights. See Avelo Mortg., LLC v. Vero Ventures,

LLC, 254 So. 3d 439, 443 (Fla. 4th DCA 2018) (explaining that to

demonstrate prejudice for purposes of applying laches, the party raising

the defense must establish that he or she has suffered a loss or injury by

relying "on another person's voluntary failure to exercise a legal right"

and further explaining that a party's delay in asserting a legal right—

standing alone—does not establish laches (first quoting Pyne v. Black,

650 So. 2d 1073, 1076 (Fla. 5th DCA 1995); and then relying on Ticktin,

807 So. 2d at 663)). Notably, the delay between the dismissal of the

second foreclosure action and the filing of the third foreclosure action

benefitted the Vanderburgs by allowing them to remain in the property

for a longer period of time; this cannot constitute "legal prejudice." Id.

(citing Florance v. Johnson, 366 So. 2d 527, 528 (Fla. 3d DCA 1979)).

While it is true that the Vanderburgs had made substantial repairs

to the property and had paid taxes and insurance on it, this is not the

type of case that qualifies as an exception to the rule such as where there

is an unreasonable delay by a mortgagee coupled with unique

circumstances. Cf. id. (noting Travis Co. v. Mayes, 36 So. 2d 264 (1948),

which involved a mortgagee's attempt to file a foreclosure action

seventeen years after the maturity date of the mortgage and where the

mortgagor had paid all taxes and improvement liens and had made

substantial repairs and improvements to the property). As we have

already explained, there was no unreasonable delay in this case. This

court is not unsympathetic to the fact that the Vanderburgs put a

significant financial investment into the property and that Mr.

Vanderburg stands to lose this investment due to the foreclosure. But

the Vanderburgs did these things at their own risk where Mr.

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Vanderburg had actual knowledge of the existing mortgage and imputed

knowledge of its contents and where he had been given no reason to

believe that the mortgagee would never foreclose.

"[A] purchaser at a judicial sale 'takes title subject to defects, liens,

incumbrances, and all matters of which he . . . has notice, or of which he

. . . could obtain knowledge in the exercise of ordinary prudence and

caution.' " Quest Sys., LLC v. Far, 356 So. 3d 300, 302 (Fla. 2d DCA

2023) (quoting U.S. Bank Nat'l Ass'n v. Rios, 166 So. 3d 202, 210 (Fla. 2d

DCA 2015)). Unfortunately, prior to their purchase, the Vanderburgs

failed to use due diligence and to investigate further once Mr.

Vanderburg learned that the property was subject to an existing

mortgage. They chose to purchase the property despite Mr. Vanderburg's

knowledge of the existing mortgage and to take the chance that the

mortgage would never be foreclosed. But this risk was borne only by

them and cannot serve as a basis to bar the mortgagee from seeking to

accelerate the loan and to foreclose prior to the maturity date of the loan,

an option that was clearly stated in the mortgage.

The trial court abused its discretion by entering final judgment in

favor of the Vanderburgs. We therefore reverse.

Reversed and remanded.

KELLY and LUCAS, JJ., Concur.

Opinion subject to revision prior to official publication.

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