DEVINA DHANASAR, APPELLANT,
v.
JPMORGAN CHASE BANK, N.A., APPELLEE
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Devina Dhanasar appealed a final judgment of foreclosure by JPMorgan Chase Bank, arguing the foreclosure complaint was time-barred under Florida's five-year statute of limitations for mortgage foreclosure actions. The Third District Court of Appeal affirmed the judgment, holding that because the complaint was filed within five years of a default payment and specifically alleged failure to pay the April 2008 installment and all subsequent payments, the action survived the statute of limitations defense.
The court affirmed the judgment of foreclosure, holding that the action was not time-barred because the complaint was filed within five years of a default payment (the April 2008 payment), and the complaint specifically alleged the failure to pay that April 2008 installment and all subsequent payments. The court rejected the argument that the statute of limitations began running when the thirty-day cure period expired in July 2008.
[1] A statute of limitations on a mortgage foreclosure action begins to run from the date of a default payment, not from the date of a notice of default and acceleration.
[2] A lender's optional acceleration clause in a mortgage requires an affirmative act by the lender to trigger acceleration, such as filing a foreclosure complaint.
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Join FLexlaw to unlock all legal intelligence“Because the Bank's complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments, and the action was filed within five years of a default payment, we agree with the trial court's conclusion that the action survived the asserted statute of limitations bar.”
The core holding explaining why the foreclosure complaint was not time-barred despite being filed five years after the initial default.
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Join FLexlaw to unlock all legal intelligenceDhanasar defaulted on her mortgage payments in April 2008. Washington Mutual, the predecessor bank, sent a notice of default and acceleration with a t…
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ON MOTION FOR REHEARING
Devina Dhanasar moves for rehearing of this Court’s July 27, 2016 opinion. We *826grant the Appellant’s motion for rehearing. We withdraw the prior opinion and issue the following corrected opinion in its place.
'Devina Dhanasar appeals from a final judgment of foreclosure. We affirm.
Dhanasar defaulted on her mortgage payments in April 2008. The predecessor bank, Washington Mutual, sent a notice of default and acceleration with a thirty-day cure provision. The foreclosure Complaint that is the subject of this appeal was filed on August 31, 2013. The 2013 Complaint sought the accelerated amounts due from April 2008 forward. Dhanasar filed her Answer, asserting nineteen affirmative defenses, the last being the five-year statute of limitations on mortgage foreclosure actions pursuant to section 95.11(2)(e), Florida Statutes (2013).
The trial was held December 2014. At trial, both parties stipulated that they would proceed solely on the statute of limitations issue. ■ Dhanasar’s counsel argued that the June 18, 2008 notice of default and thirty-day cure option triggered the start of the five-year statute of limitation on the foreclosure action when the thirty days expired. Thus, Dhanasar argued, the statute of limitation expired on July 18, 2013 and the Bank’s August 31, 2013 Complaint was time barred.
JPMorgan Chase, the successor Bank, argued at trial that acceleration did not occur until the Complaint in foreclosure was filed on August 31, 2013, because the filing of the complaint is what triggers the start of the statute of limitation. Further, the Bank-argued, the foreclosure was based on the Mortgage, not the letter of default, and the Mortgage contains an optional acceleration clause providing that the lender may; at its option, choose to accelerate the Note. In other words, the acceleration did not occur automatically thirty days after the default letter was sent, but rather when the Bank sought to foreclose by filing its 2013 Complaint. The trial court entered Final Judgment of Foreclosure against Dhanasar,1
The question is whether the Bank could proceed with the action for foreclosure where Dhanasar failed to make her April 2008 payment and any subsequent payments, where the notice letter was sent to her in June of 2008, .and where the foreclosure complaint was not filed until August of 2013. Because the Bank’s complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments, and the action was filed within five years of a default payment, we agree with the trial court’s conclusion that the action survived the asserted statute of limitations bar. We followed this analysis in Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938, 944-45 (Fla. 3d DCA 2016) (en banc), and it is entirely applicable to the facts at hand.
The order under review ⅞ therefore affirmed.
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The Bank OF NEW York Mellon Corp. v. Anton, 230 So. 3d 502 (Fla. 3d DCA 2017)…payments,” the action alleged a series of defaults by Anton on all payments due beginning on August 1, 2008 and continuing up to the date of the filing of the second foreclosure action on December 19, 2014. See Dhanasar v. JPMorgan Chase Bank, N.A. 201 So. 3d 825 (Fla. 3d DCA 2016) (holding that “[bjecause the Bank’s complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments, and the action was filed within five years of a default payment,” the action-wa…
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Nationstar Mortg. v. Silva, 239 So. 3d 782 (Fla. 3d DCA 2018)…ended complaint and the default letter. 2. Statute of limitations The Silvas’ claim that the default date in the complaint was outside the statute of limitations has already been rejected by the court. In Dhanasar v. JPMorgan Chase Bank, N.A., 201 So. 3d 825 (Fla. 3d DCA 2016), we explained that the foreclosure complaint “survived the asserted statute of limitations bar” because “the Bank’s complaint specifically alleged that [the borrower] had failed to pay the April 2008 payment and all subsequent…
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Wells Fargo Bank, N.A. v. Rendon, 245 So. 3d 917 (Fla. 3d DCA 2018)…t specifically alleged that Rendon missed the February 1, 2009 payment and "all subsequent payments " (emphasis added), Wells Fargo's complaint survived the alleged expiration of the statute of limitations. See Dhanasar v. JPMorgan Chase Bank, N.A., 201 So. 3d 825, 826 (Fla. 3d DCA 2016) ("Because the Bank's complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments , and the action was filed within five years of a default payment, we agree with the trial…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dade Cnty. Sch. Bd. v. Radio Station Wqba, 731 So. 2d 638 (Fla. 1999)
- Chirogianis v. Anderson, 401 So. 2d 1322 (Fla. 1981)
- Deutsche Bank Tr. Co. Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016)