EVERGRENE PARTNERS, INC., APPELLANT,
v.
CITIBANK, N.A., AS TRUSTEE, JPMORGAN CLEARING CORP., AS SUCCESSOR IN INTEREST TO BEAR STEARNS RESIDENTIAL MORTGAGE CORPORATION, JPMORGAN CHASE & CO., AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., APPELLEES

Fla. 4th DCA | 2014-06-25
No. 4D13-2236
DAMOORGIAN, C.J., and MAY, J., concur.
143 So. 3d 954 Florida District Court of Appeal, Fourth District (2014) Positive Treatment
Cited by 30 cases

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Holding

The court held that the statute of limitations had not run on the enforcement of the mortgages, and therefore, the mortgages did not constitute a cloud on the appellant's title requiring cancellation.


Headnotes

[1] A voluntary dismissal of a foreclosure action is not an adjudication on the merits and does not preclude subsequent actions based on different events of default.

[2] The statute of limitations on a mortgage does not necessarily bar subsequent foreclosure actions based on different events of default, even if the debt was previously acc…

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Facts & Procedural History

Evergrene Partners sought to cancel mortgages held by Citibank, alleging the statute of limitations had expired. Citibank had previously filed a forec…

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Opinion of the Court
WARNER, J.

WARNER, J.

Appellant, Evergrene Partners, challenges the dismissal of its complaint to cancel two mortgages held by appellee, Citibank, on property owned by Ever-grene. While appellant alleged that the statute of limitations had run on any right to foreclose on the mortgages, thus requiring the cancellation of the mortgages, the trial court disagreed. We agree with the trial court that appellant is not entitled to the cancellation of the mortgages, because the statute of limitations has not run on the enforcement of the mortgages.

In 2006, mortgagors executed two notes and mortgages on their property, which notes and mortgages were acquired by Citibank. The mortgagors defaulted on the notes, and Citibank filed suit to foreclose in August 2007, alleging a default in the payments and accelerating the balance due. Litigation continued, but in May 2012, Citibank filed a voluntary dismissal of the complaint. Shortly thereafter, the mortgagors transferred the property by quit-claim deed to Evergrene Partners.

Thereafter, Evergrene filed a complaint for cancellation of the mortgages on the property. It alleged that the five-year statute of limitations had run on their enforcement; therefore, as the mortgages were no longer enforceable, they became a cloud on Evergrene’s title.

Citibank filed a motion to dismiss the quiet title action arguing inter alia that section 95.281(1), Florida Statutes (2012), provides in part that:

(1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage, ... shall terminate after the expiration of the following periods of time:
(a) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturity.

Both mortgages reflected a maturity date of April 1, 2036. Citibank argued the mortgage liens did not terminate until 2041, which would be five years after the maturity date of the loans. The trial court agreed with this argument and dismissed the quiet title action, prompting this appeal. We review de novo the dismissal of a complaint for failure to state a cause of action. Acad. Express, LLC v. Broward Cnty., 53 So.3d 1188, 1190 (Fla. 4th DCA 2011).

While a foreclosure action with an acceleration of the debt may bar a subsequent foreclosure action based on the same event of default, it does not bar subsequent actions and acceleration based upon different events of default. See Singleton v. Greymar Assocs., 882 So.2d 1004, 1008 (Fla.2004) (holding that “doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether, or not the mortgagee sought to accelerate payments on the note in the first suit.”); see also Star Funding Solutions, LLC v. Krondes, 101 So.3d 403 (Fla. 4th DCA 2012). Therefore, the statute of limitations has not run on all of the payments due pursuant to the note, and the mortgage is still enforceable based upon subsequent acts of default.

Kaan v. Wells Fargo Bank, N.A, 981 F.Supp.2d 1271 (S.D.Fla.2013), presents a case virtually identical to this case. There, Wells Fargo had filed a complaint for foreclosure based upon a default on the promissory note in 2007, alleging acceleration of the balance. In 2011, it voluntarily dismissed the complaint. Kaan then filed suit to quiet title in 2013, alleging that any subsequent suit for recovery under the note and mortgage through its maturity in 2046 would be barred by the statute of *956limitations. Relying on Singleton, the court dismissed the quiet title action:

While any claims relating to individual payment defaults that are now more than five years old may be subject to the statute of limitations, each payment default that is less than five years old, i.e., since October, 2008, created a basis for a subsequent foreclosure and/or acceleration action.... Accordingly, the note and mortgage remain a valid and enforceable lien against Plaintiffs property, and do not, as a matter of law, constitute a cloud on Plaintiffs property supporting a quiet title claim.

Id. at 1274 (citations omitted).

Recently, in U.S. Bank National Ass’n v. Bartram, 140 So.3d 1007, 39 Fla. L. Weekly D871 (Fla. 5th DCA Apr. 25, 2014), the Fifth District applied Singleton to conclude that enforcement of a mortgage and note was not barred 'by the statute of limitations even where the prior foreclosure suit was involuntarily dismissed pursuant to Florida Rule of Civil Procedure 1.420. In the present case, as in Kaan, Citibank filed its notice of voluntary dismissal. A voluntary dismissal is not an adjudication on the merits and therefore will not support a claim of res judicata. See Froman v. Kirland, 753 So.2d 114, 116 (Fla. 4th DCA 1999). Therefore, the claims of acceleration and subsequent acts of default have never been adjudicated on their merits in this case, and any acts of default still within the statute of limitations may be raised in a subsequent suit. The trial court did not err in dismissing Evergrene’s complaint.

Affirmed.

DAMOORGIAN, C.J., and MAY, J., concur.


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Citator

Cited By (13 total)

  • Bartram v. U.S. Bank Nat'l Ass'n, 211 So. 3d 1009 (Fla. 2016)
    …a mortgage continued] until a final judgment of foreclosure [was] entered and no action [was] necessary to reinstate it via a notice of ‘deceleration’ or otherwise.” With reasoning similar to Beauvais, in Evergrene Partners, Inc. v. Citibank, N.A., 143 So. 3d 954, 955 (Fla. 4th DCA 2014), a mortgagor challenged, on statute of limitations grounds, a second foreclosure action brought by the mortgagee when the mortgagee had voluntarily dismissed a prior foreclosure action based on a separate default. The Fourth…
    1 / 2
  • Deutsche Bank Tr. Co. Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016)
    …se we, like our sister courts, find the Florida Supreme Court’s decision in Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla.2004), applicable to the instant action, and that it mandates reversal. See Evergrene Partners, Inc. v. Citibank, N.A., 143 So. 3d 954, 956 (Fla. 4th DCA 2014) (applying Singleton and concluding that' the statute of limitations would not bar foreclosure of an accelerated loan where an earlier, voluntarily dismissed, foreclosure' had been brought to'enforce the same loan accelerated…
  • Nationstar Mortg., LLC v. Germaine R. Brown, 175 So. 3d 833 (Fla. 1st DCA 2015)
    …eview granted, 160 So. 3d 892 (Fla.2014) (Case No. SC14-1305) (dismissal of earlier foreclosure action, whether with or without prejudice, did not bar subsequent foreclosure action based on a new default); Evergrene Partners, Inc. v. Citibank, N.A., 143 So. 3d 954, 955 (Fla. 4th DCA 2014) (foreclosure and acceleration based on an earlier default “does not bar subsequent actions and acceleration based upon different events of default”). The dismissal in this case was without prejudice, so much the more preserv…

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