Bollettieri Resort Villas Condo. Ass'n, Inc. v. Bank of N.Y. Mellon, SC16–1680

• Citation: 228 So.3d 72 (Mem)
• Decision Date: 12 October 2017
• Docket Number: No. SC16–1680,SC16–1680
• Parties: BOLLETTIERI RESORT VILLAS CONDOMINIUM ASSOCIATION, INC., Petitioner, v. The BANK OF NEW YORK MELLON, Etc., Respondent.
• Court: United States State Supreme Court of Florida

228 So.3d 72 (Mem)

BOLLETTIERI RESORT VILLAS CONDOMINIUM ASSOCIATION, INC., Petitioner,

v.The BANK OF NEW YORK MELLON, Etc., Respondent.

No. SC16–1680

Supreme Court of Florida.

[October 12, 2017]

Shawn G. Brown of Frazier & Brown Law, PLLC, Tampa, Florida, for Petitioner

Nancy M. Wallace of Akerman LLP, Tallahassee, Florida, William P. Heller of Akerman LLP, Fort Lauderdale, Florida, Celia C. Falzone of Akerman LLP, Jacksonville, Florida, and Paul W. Ettori of Akerman LLP, Orlando, Florida, for Respondent

Dennis A. Donet of Law Office of Dennis A. Donet, P.A., Miami, Florida, for Amicus Curiae Enrique Arevalo

PER CURIAM.

We initially accepted jurisdiction to review Bollettieri Resort Villas Condominium Ass'n, Inc. v. Bank of New York Mellon, 198 So.3d 1140 (Fla. 2d DCA 2016), review granted, No. SC16–1680, 2016 WL 9454216 (Fla. 2016), pursuant to article V, section 3(b)(4), of the Florida Constitution. After further consideration of the subsequent opinion of the Fifth District Court of Appeal in Klebanoff v. Bank of New York Mellon, 228 So.3d 167, 2017 WL 2818078 (Fla. 5th DCA June 30, 2017), and the more recent cases from the Fourth District Court of Appeal in Kebreau v. Bayview Loan Servicing, LLC, 225 So.3d 255, 256, 2017 WL 2983999, at *1 (Fla. 4th DCA July 12, 2017), and the First District Court of Appeal in Forero v. Green Tree Servicing, LLC, 223 So.3d 440, 445 (Fla. 1st DCA 2017), we have determined that the certified conflict has been resolved, and we conclude that we should exercise our discretion and decline review. Accordingly, this case is hereby dismissed.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, CANADY, and POLSTON, JJ., concur.

LAWSON, J., concurs specially with an opinion.

LEWIS, J., concurs in result.

LAWSON, J., concurring specially.

I agree that the conflict certified in Bollettieri Resort Villas Condominium Ass'n, Inc. v. Bank of New York Mellon, 198 So.3d 1140 (Fla. 2d DCA 2016), review granted, No. SC16–1680, 2016 WL 9454216 (Fla. 2016), has been resolved. The original conflict issue, however, was no more than the latest symptom of a more serious problem: a widespread and fundamental misunderstanding, in Florida, regarding how the statute of limitations, § 95.11(2)(c), Fla. Stat. (2017), operates vis-à -vis a long-term note (and mortgage). The law used to be well-settled and clear:

The American cases are agreed that, when the acceleration provision is optional with the holder of the note, the Statute of Limitations does not run until the note is due according to its terms, in the absence of an exercise of the option to declare it due upon the default; in other words, the default does not ipso facto start the running of the statute.

Acceleration provision in note or mortgage as affecting the running of the Statute of Limitations, 34 A.L.R. 897 (1925).

Contrast the above statement of once-uniformly-accepted "black letter law" with the following statement from Bollettieri: "[W]e agree with the Fifth District that a foreclosure action must be based on a [missed payment] default that occurred within the five-year statute of limitations period ...." 198 So.3d at 1142.¹ Contrary to this assertion in Bollettieri, a missed payment default does not start the running of the statute of limitations. 34. A.L.R. 897. This means that the action does not need to be based on a missed payment default within the five-year limitations period—which, of course, is the exact opposite of the rule on which the Second and Fifth Districts agreed. Understanding why a missed payment is a non-event for statute of limitations purposes requires applying basic rules regarding when any statute of limitations begins to run to the specific terms of the typical long-term promissory note and mortgage, which by contract do not automatically accelerate when a payment is missed.

As explained in Kipnis v. Bayerische Hypo–Und Vereinsbank, AG, 202 So.3d 859, 861–62 (Fla. 2016),

"[T]he time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues." § 95.031, Fla. Stat. (2013). "A cause of action accrues when the last element constituting the cause of action occurs." § 95.031(1), Fla. Stat.; see also State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818, 821 (Fla. 1996) ("[A] cause of action cannot be said to have accrued, within the meaning of the statute of limitations, until an action may be brought.").

Under the terms of most long-term notes and mortgages, including the one at issue in Bollettieri, the total amount due under the note does not become due until maturity—most commonly thirty years after signing. Lenders cannot and do not sue to collect missed payments. Rather, the lender must bring suit for all amounts due under the note, see Gaynon v. Statum, 151 Fla. 793, 10 So.2d 432, 433 (1942) (explaining the rule against splitting causes of action), which it cannot do under the terms of the note until maturity—unless it gives notice that it intends to act on a default (missed payment) by accelerating and declaring the entire balance due immediately. The Bollettieri contract also clearly provides that the lender or holder may forbear and hold off on accelerating the note—and that forbearance will not constitute a waiver or defense against future collection of all sums due and owing under the note. This means that the cause of action on a thirty-year note does not accrue until thirty years after signing—when the full balance is due—unless the lender accelerates and declares the full balance due earlier. See, e.g., Greene v. Bursey, 733 So.2d 1111, 1114–15 (Fla. 4th DCA 1999). The borrower who agreed that its default...