Hicks v. Wells Fargo Bank, N.A., 5D14–1748.

• Decision Date: 13 November 2015
• Docket Number: No. 5D14–1748.,5D14–1748.
• Parties: Patrick HICKS and Tamaica Hicks, Appellants, v. WELLS FARGO BANK, N.A., etc., et al., Appellees.
• Court: Florida District Court of Appeals

178 So.3d 957

Patrick HICKS and Tamaica Hicks, Appellants,

v.WELLS FARGO BANK, N.A., etc., et al., Appellees.

No. 5D14–1748.

District Court of Appeal of Florida, Fifth District.

Nov. 13, 2015.

Lora S. Scott, of The Law Office of Lora S. Scott, LLC, Orlando, for Appellants.

Michael K. Winston and Dean A. Morande, of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellee.

LAMBERT, J.

Patrick Hicks and Tamaica Hicks ("Homeowners") appeal the final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A. ("Bank"). Homeowners argue that based upon the default date alleged in the complaint and the stipulations of the parties at trial, Bank's claim was barred by the applicable statute of limitations. We agree and reverse with directions to dismiss the complaint.

On January 9, 2013, Bank filed its complaint to foreclose the mortgage and reestablish the promissory note at issue.¹ Bank alleged that the terms of the note and mortgage had been breached by Homeowners' failure to pay the June 1, 2006 payment and all subsequent payments. Bank also alleged that it exercised its option to accelerate the loan.

Homeowners answered the complaint and asserted as their first affirmative defense that the complaint was time barred and must be dismissed with prejudice because the suit was not commenced within five years of the default date alleged in the complaint, as required under section 95.11(2)(c), Florida Statutes (2013) (establishing a five-year statute of limitations on actions to foreclose a mortgage). Bank did not file a reply to the affirmative defense.

The case proceeded to trial in March 2014. At the commencement of trial, the following colloquy between counsel and the court occurred:

[HOMEOWNERS' COUNSEL]: Your Honor, before we get started with testimony, plaintiff's counsel and I have talked.

We actually believe that none of the facts are in dispute, and it's just a matter of law that the Court needs to rule upon.

There was a motion for summary judgment filed, but unfortunately it was filed 18 days ago. So by rule, we aren't able to have it heard before today's trial.

So we are proposing that we have a stipulation to the facts during what is now the trial, and then make arguments to the Court in terms of the law and how those facts should be applied, and then have the Court render a judgment based on those facts and application of the law.

[BANK'S COUNSEL]: Your Honor, that's the agreement. And I believe that the agreement is that, depending on how this comes out, they'll consent to the final judgment or it will be dismissed.

THE COURT: This is set for trial. It's not set for summary judgment.

[HOMEOWNERS' COUNSEL]: That's correct, Your Honor, but being that there are no disputes as to the facts, we'd be happy to stipulate to what those are for the Court to consider.

[BANK'S COUNSEL]: And really, I mean, the determining factor isn't anything to do with the facts. It's one issue of law.

....

[BANK'S COUNSEL]:.... There was a default on the loan that occurred in 2006. The prior holder of the note, U.S. Bank, filed a foreclosure action against defendants in 2006. That action was voluntarily dismissed in 2008.

In 2011, Wells Fargo, who is the current holder of the note and mortgage, sent a notice of intent to accelerate to the defendants, and then filed a new foreclosure action in 2013.^[2]

Homeowners' counsel thereafter argued that it was undisputed that there was a prior foreclosure suit, based on a June 1, 2006 default, filed on September 8, 2006, and that by filing the 2006 foreclosure action, the prior holder accelerated the balance owed on the note. Subsequently, the suit was voluntarily dismissed without prejudice. Based on this chronology, Homeowners' counsel asserted below that Bank was therefore required to file the present suit to foreclose no later than September 8, 2011. Because the present suit was not filed until 2013, Homeowners argued that Bank's suit was barred by the statute of limitations. Conversely, Bank argued that pursuant to Singleton v. Greymar Associates, 882 So.2d 1004 (Fla.2004), the voluntary dismissal of the prior foreclosure action in 2008, without prejudice, meant that the loan was no longer in a state of acceleration. Therefore, Bank asserted that if the loan went into "default at any time," Bank would be entitled to accelerate the full balance due under the note, including "the amounts going back to the first date of default because that's what's due and owing." After listening to the arguments, the court entered the final judgment of foreclosure on appeal.

The dispositive facts in this appeal are not in dispute. Because the earlier voluntary dismissal was not an adjudication on the merits, Evergrene Partners, Inc. v. Citibank, N.A., 143 So.3d 954, 956 (Fla. 4th DCA 2014) (citing Froman v. Kirland, 753 So.2d 114, 116 (Fla. 4th DCA 1999) ), Bank was entitled to bring a later suit to foreclose on the note and mortgage. However, the suit must still be based on an act of default within the five-year statute of limitations period. See id. Here, Bank's complaint was filed in 2013, based on an alleged default occurring on June 1, 2006.³ Because trial co...