Deutsche Bank Trust Co. v. Beauvais, 3D14–575.

• Citation: 188 So.3d 938
• Decision Date: 13 April 2016
• Docket Number: No. 3D14–575.,3D14–575.
• Parties: DEUTSCHE BANK TRUST COMPANY AMERICAS, as Indenture Trustee for American Home Mortgage Investment Trust 2006–2, Appellant, v. Harry BEAUVAIS, and Aqua Master Association, Inc., a non-profit Florida corporation, Appellees.
• Court: Court of Appeal of Florida (US)

188 So.3d 938

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Indenture Trustee for American Home Mortgage Investment Trust 2006–2, Appellant,
v.
Harry BEAUVAIS, and Aqua Master Association, Inc., a non-profit Florida corporation, Appellees.

No. 3D14–575.

District Court of Appeal of Florida, Third District.

April 13, 2016.

K & L Gates, and David R. Fine, Harrisburg, PA, and William P. McCaughan, Steven R. Weinstein and Stephanie N. Moot, for appellant.

Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel and Steven M. Siegfried and Nicholas D. Siegfried ; Wallen Hernandez Lee Martinez, and Todd L. Wallen, for appellee, Aqua Master Association, Inc.

Ausley McMullen and Major B. Harding; Hargrove Law Group and John R. Hargrove, for Baywinds Community Association, Inc., as amicus curiae.

Levine Kellogg Lehman Schneider + Grossman, and Stephanie Reed Traband and Victor Petrescu, for the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation, as amici curiae.

Morgan, Lewis & Bockius, and Robert M. Brochin, Joshua C. Prever and Christopher K. Smith, for Mortgage Bankers Association of South Florida, as amicus curiae.

Matthew Estevez, for Community Associations Institute, as amicus curiae.

Jacksonville Area Legal Aid and Lynn Drysdale, for the National Association of Consumer Advocates, the National Consumer Law Center and the Jerome N. Frank Legal Services Organization at the Yale Law School, as amici curiae.

188 So.3d 940

Gilbert Garcia Group, Michelle G. Gilbert, Jennifer Lima–Smith and Nicholas R. Cavallaro ; Gladstone Law Group, Andrea R. Tromberg and Jason F. Joseph ; Robertson, Anschutz & Schneid, Robert R. Edwards and Jessica P. Quiggle; Kass Shuler, Melissa A. Giasi and Richard S. McIver ; Elizabeth R. Wellborn ; Brock and Scott, Shaib Y. Rios and Curtis J. Herbert, for the American Legal and Financial Network, as amicus curiae.

McGlinchey Stafford, and Manuel Farach, for the Business Law Section of the Florida Bar, as amicus curiae.

Goldman Felcoski & Stone, and Robert W. Goldman ; Gunster, and Kenneth B. Bell and John W. Little, III, for the Real Property Probate & Trust Law Section of The Florida Bar, as amicus curiae.

Crabtree & Auslander, and John G. Crabtree, Charles Auslander, George R. Baise, Jr., and Brian C. Tackenberg ; Alice Vickers and Bryant H. Dunivan, Jr., for Florida Alliance for Consumer Protection, as amicus curiae.

Before SUAREZ, C.J., and WELLS, SHEPHERD, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE and SCALES, JJ.

ON MOTION FOR REHEARING EN BANC OR, IN THE ALTERNATIVE, MOTION FOR CERTIFICATION

WELLS, Judge.

We grant rehearing en banc, withdraw our prior opinion in Deutsche Bank Trust Co. Americas v. Beauvais, 40 Fla. L. Weekly D1, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014), and substitute this opinion in its stead.

Deutsche Bank appeals from a final summary judgment denying foreclosure of a mortgage securing a $1,440,000 promissory note executed in the bank's favor by borrower Harry Beauvais. The complaint filed by the bank on December 18, 2012, alleged entitlement to relief by virtue of Beauvais' failure to pay an installment payment due on October 1, 2006, "and all subsequent payments." The complaint, in addition to naming Beauvais, joined a number of entities with potential interests in the property securing the bank's loan including the Aqua Master Association, Inc., the condominium association for the premises at issue.

By the time this action was commenced, Beauvais no longer held title to the condominium securing payment of this loan, his interest having been foreclosed and title transferred in 2011 to Aqua to satisfy outstanding condominium assessments. Beauvais, with no interest in the property, filed no answer to the bank's complaint and asserted no defenses to foreclosure of the bank's loan. The bank moved for a default; however, none appears to have been entered. Aqua, on the other hand, now title holder of the property securing the bank's loan, filed an answer and affirmative defenses in which it alleged that the instant action was barred by the five year statute of limitations governing mortgage foreclosures. See § 95.11(2)(c), Fla. Stat. (2013). According to Aqua, the bank's cause of action for foreclosure accrued in 2007 when the bank's predecessor in interest accelerated the balance due on the loan by filing a prior suit to collect on a September 1, 2006 default,¹ and because the bank failed to pursue foreclosure within five years of that acceleration/accrual

188 So.3d 941

after the first suit was dismissed, the instant action was time barred.

The trial court agreed and granted judgment in Aqua's favor:

The previous mortgage holder filed suit against borrower [Beauvais] and the Association on January 23, 2007, alleg[ing] that the borrower defaulted on the mortgage and elected to accelerate payment of the balance due on the note and mortgage. The prior complaint specifically declared the full amount payable under the note and mortgage, $1,439,976.80, to be due. However, the action was dismissed without prejudice on plaintiff's non-appearance at initial case management conference on December 6, 2010. On December 12, 2012, Plaintiff filed the instant suit to foreclose the mortgage. The complaint called for the entire balance of $1,439,976.80, to be due.

Association is correct that the filing of the prior lawsuit in 2007 triggered the running of the statute of limitations with respect to the entire balance of the mortgage and note. The case to which the Plaintiff cites, Singleton v. Greymar Assoc., 882 So.2d 1004 (Fla.2004), is inapposite and concerns only the application of res judicata in an action to collect discrete payments under an installment contract. Singleton is not only distinguishable from the facts of the instant case, it is wholly irrelevant to the issue of the statute of limitations raised by the Association.

It is the determination of this Court that the right to accelerate was exercised by the filing of the prior lawsuit on January 23, 2007. Since more than five years elapsed between the acceleration and the filing of the underlying suit, the action is barred by the statute of limitations. See § 95.11(2)(c), Fla. Stat....

The bank appeals. We reverse because we, like our sister courts, find the Florida Supreme Court's decision in Singleton v. Greymar Associates, 882 So.2d 1004 (Fla.2004), applicable to the instant action, and that it mandates reversal. See Evergrene Partners, Inc. v. Citibank, N.A., 143 So.3d 954, 956 (Fla. 4th DCA 2014) (applying Singleton and concluding that the statute of limitations would not bar foreclosure of an accelerated loan where an earlier, voluntarily dismissed, foreclosure had been brought to enforce the same loan accelerated for a separate default); see also Nationstar Mortg., LLC v. Brown, 175 So.3d 833, 834–35 (Fla. 1st DCA 2015) (applying Singleton to hold that the statute of limitations did not bar an action to foreclose an accelerated loan brought more than five years after a prior action to foreclose on the same accelerated loan had been brought but then voluntarily dismissed without prejudice); accord Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 959 (Fla. 5th DCA 2015) (citing Singleton and concluding "we reject Homeowners' implication in their brief that Bank is now forever barred from bringing an action to foreclose. Despite the previous acceleration of the balance owed in both the instant suit and prior suit, Bank is not precluded from filing a new foreclosure action based on different acts or dates of default not previously alleged, provided that the subsequent foreclosure action on the subsequent defaults is brought within the statute of limitations period found in section 95.11(2)(c), Florida Statutes").

1. Application of Singleton to the instant case.

a. Singleton allows for multiple actions for individual defaults with accompanying accelerations.

In Singleton, the Florida Supreme Court held that "successive foreclosure

188 So.3d 942

suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit," were not barred if, as here, the second suit was predicated on a new default because a "subsequent and separate alleged default create[s] a new default and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action. " Singleton, 882 So.2d at 1008 (emphasis added); see, e.g., PNC Bank, NA v. Neal, 147 So.3d 32, 32 (Fla. 1st DCA 2013) (stating that "the dismissal with prejudice of PNC Bank's foreclosure action ... does not preclude PNC Bank from instituting a new foreclosure action based on a different act or a new date of default not alleged in the dismissed action"); Star Funding Solutions, LLC v. Krondes, 101 So.3d 403, 403 (Fla. 4th DCA 2012) (citing Singleton as support for the conclusion that dismissal with prejudice of the instant action would have no impact on a subsequent foreclosure action because "[a] new default, based on...