THE BANK OF NEW YORK MELLON CORPORATION AS TRUSTEE, ETC., APPELLANT,
v.
ALEJANDRO O. ANTON, APPELLEE

Fla. 3d DCA | 2017-08-30
No. 3D15-2213
Before EMAS, FERNANDEZ and LUCK, JJ.
230 So. 3d 502 Florida District Court of Appeal, Third District (2017) Positive Treatment
Cited by 26 cases

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Synopsis

The Bank of New York Mellon Corporation appealed a summary judgment dismissing its second foreclosure action on statute of limitations grounds. The court reversed, holding that a foreclosure complaint alleging continuing defaults after an initial default date stated a timely claim even when filed more than five years after the first default, provided the second action was based on a subsequent default within the limitations period.


Holding

The court held that BONYM's second foreclosure action was not barred by the statute of limitations because the complaint alleged a series of continuing defaults, including payments due after August 1, 2008 through the filing date, meaning the action was based on a subsequent default within the limitations period.


Headnotes

[1] A subsequent foreclosure action filed after the dismissal of an initial foreclosure action seeking acceleration is not barred by the statute of limitations if the subsequ…

[2] The dismissal of an initial foreclosure action, even if it sought acceleration, does not trigger the statute of limitations to bar a subsequent foreclosure action based o…

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Key Quotes

“[W]ith each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage.”

Establishes the key legal principle that the statute of limitations resets with each new default, allowing successive foreclosure actions on different defaults

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Facts & Procedural History

BONYM filed a foreclosure complaint on October 29, 2009, alleging Anton defaulted on payments due August 1, 2008 and subsequent payments, and accelera…

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Opinion of the Court
EMAS, J.

EMAS, J.

Appellant, The Bank of New York Mellon Corporation (BONYM), appeals the trial court’s order granting summary final judgment in favor of appellee, Alejandro 0. Anton. For the reasons that follow, we reverse.

On October 29, 2009, BONYM filed a complaint to foreclose on residential property owned by Anton, alleging that BO-NYM “has not been paid the payment due August 1, 2008, and all subsequent payments, which has resulted in a default of the note and mortgage.” In its complaint, BONYM “declares the full amount due under the note and mortgage to be accelerated.” On December 5, 2011, the trial court dismissed this action for lack of prosecution.

On December 19, 2014, BONYM filed a second action to foreclose on Anton’s property. The complaint in the second foreclosure action alleged that Anton “has defaulted on the promissory note and mortgage by failing to pay the payment due on August 1, 2008, and all subsequént payments.” BONYM again declared the' full amount due under the mortgage and note to be accelerated.

Thereafter, Anton filed a motion for summary judgment, contending that the second foreclosure action was barred by the five-year statute of limitations. See § 95.11(2)(c), Fla. Stat. (2009). The trial court entered final judgment in favor of Anton. In doing so, the • trial court took judicial notice of the pleadings filed in the first foreclosure action and concluded; ■

There is no genuine issue of material fact. Plaintiff clearly and unequivocally accelerated all sums due under the subject promissory note on October 29, 2009—the date it filed its prior Complaint for Foreclosure. Plaintiffs prior foreclosure suit was subsequently dismissed without prejudice, for lack of prosecution. As such, the applicable statute of limitations expired on October 28, 2014—5 years after the cause of action accrued. See Section § 95.11(2)(c), Fla. Stat. The instant suit to foreclose the mortgage was filed December 14, 2014— after the Statute of Limitations expired.

This appeal follows.

Upon our de novo review, Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000), we hold that the trial court’s entry of summary judgment was erroneous. The trial court found that, because the payments due under the note and mortgage were accelerated by the filing of the first action in October 2009, the second action (commenced more than five years later, in December 2014) was barred by the statute of limitations.

However,- this reasoning was rejected by the Florida Supreme Court in Bartram v. U.S. Bank National Association, 211 So.3d 1009 (Fla. 2016), and by this court in Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016) (en banc).1

In Bartram, 211 So.3d at 1019, the Florida Supreme Court addressed the appliea-*504bility of the statute of limitations after a foreclosure complaint (in which the sums due under the note and mortgage were accelerated) had been involuntarily dismissed: .

[W]ith each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation,, to accelerate all sums then due under the note and mortgage.
Consistent with the reasoning of Singleton [v. Greymar Associates, 882 So.2d 1004 (Fla. 2004) ], the statute of limitations on the balance under the note and mortgage would not -continue to run after an • involuntary dismissal, and- thus the mortgagee, would not -be barred by the statute of limitations from filing a successive foreclosure action premised on a “separate and distinct” default. Rather, after the dismissal, the parties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the residential mortgage declared in the unsuccessful foreclosure action is revoked.

The Court further held:

[T]he Bank’s first foreclosure action was involuntarily dismissed, and therefore there was no judicial determination that a default actually, occurred. Thus, even if .the note had been accelerated through the Bank’s foreclosure complaint, the dismissal of the foreclosure action had the effect of revoking the acceleration. By^the express terms of the reinstatement provision, if, in the month after the dismissal of the foreclosure action, Bar-tram began to make monthly .payments on the note, the Bank could not have subsequently accelerated the entire npte until' there were future defaults: Once there were future defaults, however, the 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 (emphasis added).

Therefore, BONYM’s allegation in the second complaint—that Anton defaulted by failing to make payment on August 1, 2008 “amd all subsequent payments”—satisfies Bartr'am’s pleading requirement that the second “foreclosure action was based on a subsequent default, and the statute of limitations had not run on' that particular default.” Id.

Given the allegation that 'Anton failed to make all subsequent payments, the mere fact that the second foreclosure complaint alleged the same initial default date as that alleged in the first foreclosure complaint (he., August 1, 2008), is of no moment: by alleging that Anton failed to make.the payment due on August 1, 2008 “and all subsequent 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-was not barred by the statute of limitations); Desylvester v. Bank of New York Mellon, 219 So.3d 1016, 1018 (Fla. 2d DCA 2017), (holding that where second foreclosure action alleged the same initial default date as the first (dismissed) foreclosure action and complaint alleged, additionally, that the *505borrowers defaulted by failing to make the payment due on October 1, 2008, “and all subsequent payments due thereafter ... borrowers were in a continuing state of default at the time of the filing of the complaint” and the action was not barred by the statute of limitations). See also Forero v. Green Tree Servicing, LLC, No. 1D16-2151, 223 So.3d 440, 2017 WL 2989493 (Fla. 1st DCA July 14, 2017); Klebanoff v. Bank of New York Mellon, 228 So.3d 167, 2017 WL 2818078 (Fla. 5th DCA June 30, 2017); Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 198 So.3d 1140 (Fla. 2d DCA 2016), review granted, No. SC16-1680, 2016 WL 9454216 (Fla. Nov. 2, 2016).2

We therefore hold that BONYM’s second foreclosure action was not barred by the five-year statute of limitations.

Reversed and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (13 total)

  • Wells Fargo Bank, N.A. v. Rendon, 245 So. 3d 917 (Fla. 3d DCA 2018)
    …acceleration of the residential mortgage declared in the unsuccessful foreclosure action is revoked."); Nationstar Mortg., LLC v. Silva, 3D16-1936, 239 So. 3d 782, 2018 WL 1177360 (Fla. 3d DCA Mar. 7, 2018) ; Bank of New York Mellon Corp. v. Anton, 230 So. 3d 502, 504 (Fla. 3d DCA 2017) ("Given the allegation that Anton failed to make all subsequent payments, the mere fact that the second foreclosure complaint alleged the same initial default date as that alleged in the first foreclosure complaint (i.e., Aug…
  • U.S. Bank v. Amaya, 254 So. 3d 579 (Fla. 3d DCA 2018)
  • Bank OF NEW York Mellon v. Stallbaum, 230 So. 3d 1271 (Fla. 5th DCA 2017)
    …se was the same default al- . leged in an earlier foreclosure action between the parties that was dismissed without prejudice. We rejected this argument based on similar facts in Diamond, 228 So. 3d at 178, Accord Bank of N.Y. Mellon Corp. v. Anton, 230 So. 3d 502 (Fla. 3d DCA Aug. 30, 2017) (holding that complaint alleging default based on initial default "and all subsequent payments” satisfied pleading requirement in Bar-tram). Unlike Bartram, the earlier action here was not adjudicated on the merits.…

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