WELLS FARGO BANK, NA, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC., BEAR STEARNS MORTGAGE FUNDING, TRUST 2007-AR4, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-AR4, APPELLANT,
v.
BH-NV INVESTMENTS 1, LLC, APPELLEE
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A subsequent foreclosure action is not barred by the statute of limitations if it is based on a subsequent default that occurred within five years of the filing of that action.
[1] A subsequent foreclosure action is not barred by the statute of limitations if it is based on a default that occurred within five years of the filing of that action, even…
[2] Dismissal of a foreclosure action that accelerated payment on one default does not preclude a subsequent foreclosure action based on a later default, provided the later d…
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Join FLexlaw to unlock all legal intelligenceThe Trustee filed a foreclosure action which was dismissed for lack of prosecution. A second foreclosure action was filed based on a later default, bu…
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Appellant, Wells Fargo Bank, NA, as Trustee, on behalf of the Holders of Structured Asset Mortgage Investments II, Inc., Bear Stearns Mortgage Funding, Trust 2007-AR4, Mortgage Pass Through Certificates, Series 2007-AR4 (“Trustee”) appeals from the trial court’s order entering final summary judgment in favor of Appellee, BH-NV Investments 1, LLC (“BH-NV”). We reverse.
I. FACTUAL AND PROCEDURAL • HISTORY .
;0f significance to this appeal, bn'June 15, 2009, the Trustee filed a complaint to foreclose on the subject property and alleged that the Borrower defaulted by failing to pay the .December 1, 2008, payment and all subsequent payments (the “First Foreclosure Action”). On April 1, 2011, the trial court dismissed the First Foreclosure Action for lack of prosecution...
Subsequently, on July 14, 2015, the Trustee filed a second foreclosure action on the subject property, and alleged that the Borrower defaulted by failing to pay the August 1, 2010, payment and all subsequent payments (the “Second Foreclosure Action”). •
BH-NV1 filed a Motion for Summary Judgment asserting that the Second Foreclosure Action was barred by the applicable statute of limitations. At the summary judgment hearing, counsel for BH-NV relied on this Court’s opinion in Deutsche Bank Trust Co. Americas v. Beauvais, 40 Fla. L. Weekly D1 (Fla. 3d DCA Dec. 17, 2014) (“Beauvais I”). Following the hearing, the trial court entered a written order granting BH-NVs motion “on statute of limitations grounds.” This timely appeal ensued.
II. ANALYSIS
On appeal, the Trustee contends that this Court’s en banc decision in Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016) (“Beauvais II”), which withdrew Beauvais I, requires reversal of the trial court’s order finding that the Second Foreclosure Action was barred by the applicable statute of limitations. We agree. As this Court concluded in Beauvais II, “dismissal of a *62foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default if the subsequent default occurred within five years of the subsequent action.” Id. at 944.
Moreover, the Florida Supreme Court’s subsequent opinion in Bartram v. U.S. Bank National Ass’n, 211 So.3d 1009 (Fla. 2016), reached the same conclusion on the question at issue here—whether a subsequent foreclosure action filed after an initial foreclosure action that sought acceleration but was later dismissed is barred by the applicable statute of limitations. In Bartram, the Florida Supreme Court concluded that a “Bank had the right to. file a subsequent foreclosure action—and to seek acceleration of all sums due under the note—so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default.” Id. at 1021.
Accordingly, both Bartram and Beauvais II hold that a subsequent foreclosure action is not barred so long as the second action is brought on a subsequent default within the five-year statute of limitations period found in section 95.11(2)(c), Florida Statutes. A review of the record evidence in this case shows that the default in the Second Foreclosure Action is different than the default in the First Foreclosure Action. Moreover, the record evidence further establishes that the later default occurred within five years of the- filing of that subsequent action.
Accordingly, we reverse the final judgment and remand to the trial court for reinstatement of the complaint in light of the Florida Supreme Court’s opinion in Bartram and this Court’s opinion in Beau-vais II. We note that the trial court did not have the benefit of either opinion when it rendered the final judgment in favor of BH-NV.2
Reversed and remanded for reinstatement of complaint.
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Trilok Desai v. Bank of N.Y. Mellon, 240 So. 3d 729 (Fla. 4th DCA 2018)…erred by failing to dismiss a foreclosure action where counsel stipulated to a default date outside of the statute of limitations). Other cases arising in our sister courts have held similarly. In Wells Fargo Bank, NA v. BH-NV Invs. 1, LLC, 230 So. 3d 60, 61 (Fla. 3d DCA 2017), a trustee filed a foreclosure action in June 2009 based on a borrower’s default in December 2008 and on all subsequent payments. In April 2011, the trial court dismissed that foreclosure action. Id. More than four year…
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Deutsche Bank v. Sfl Prop. Holding LLC, 237 So. 3d 1125 (Fla. 3d DCA 2018)…che Bank Tr. Co. Ams. v. Beauvais (“Beauvais II”), 188 So. 3d 938 (Fla. 3d DCA 2016) (en banc);1 see also, e.g., Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 228 So. 3d 72 (Fla. 2017); Wells Fargo Bank, NA v. BH–NV Invs. 1, LLC, 230 So. 3d 60 (Fla. 3d DCA 2017); Wells Fargo Bank, N.A. v. Spence, 213 So. 3d 1142 (Fla. 3d DCA 2017); Arnoux v. Bank of N.Y., 193 So. 3d 82 (Fla. 3d DCA 2016). Reversed and remanded for reinstatement of the complaint. 1 We note that the trial court did not…
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Gonzalez v. Fed. Nat'l Mortg. Assoc. (Fla. 3d DCA 2018)
Authorities Cited
- Bartram v. U.S. Bank Nat'l Ass'n, 211 So. 3d 1009 (Fla. 2016)
- Deutsche Bank Tr. Co. Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016)
- Wilmington Tr. v. Alvarez, 239 So. 3d 1265 (Fla. 3d DCA 2018)
- Wells Fargo Bank, N.A. v. Spence, 213 So. 3d 1142 (Fla. 3d DCA 2017)