228 So.3d 72 (Fla. 2017), SC16-1680, Bollettieri Resort Villas Condominium Association, Inc. v. Bank of New York Mellon

Docket Nº:SC16-1680
Citation:228 So.3d 72, 42 Fla.L.Weekly S 847
Opinion Judge:PER CURIAM.
Party Name:BOLLETTIERI RESORT VILLAS CONDOMINIUM ASSOCIATION, INC., Petitioner, v. The BANK OF NEW YORK MELLON, Etc., Respondent.
Attorney: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, Florid...
Judge Panel:LABARGA, C.J., and PARIENTE, QUINCE, CANADY, and POLSTON, JJ., concur. LEWIS, J., concurs in result. LAWSON, J., concurring specially.
Case Date:October 12, 2017
Court:Supreme Court of Florida

Page 72

228 So.3d 72 (Fla. 2017)

42 Fla.L.Weekly S 847

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

Application for Review of the Decision of the District Court of Appeal—Direct Conflict

Page 73

of Decisions, Second District—Case No. 2D15-3186 (Manatee County)

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

OPINION

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.

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 ore 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

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period ...." 198 So.3d at 1142.1 Contrary to this assertion in Bollettieri, a...

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