Snow v. Wells Fargo Bank, N.A.
Decision Date | 14 January 2015 |
Docket Number | No. 3D14–1547.,3D14–1547. |
Citation | 156 So.3d 538 |
Parties | Richard Hubert SNOW, et al., Appellants, v. WELLS FARGO BANK, N.A., etc., Appellee. |
Court | Florida District Court of Appeals |
John H. Ruiz and Karen J. Barnet–Backer and Christine M. Lugo, for appellants.
Burr & Forman and John R. Chiles and Christine Irwin Parrish and Gennifer L. Bridges (Orlando), for appellee.
Before SALTER, EMAS and SCALES, JJ.
Richard and Nancy Snow (“the Snows”) appeal a final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A. (“Wells Fargo”). We affirm.
The Snows executed a note and mortgage on real property in Miami, Florida on May 25, 2007. Pursuant to the terms of the mortgage, the lender had the option to accelerate the debt in the event of a default by the borrower:
22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise.) The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at is option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence.
The Snows failed to make the required monthly payment due on October 1, 2007. On December 6, 2007, Wells Fargo sent the Snows a notice of default, which provided in pertinent part:
Thereafter, Wells Fargo filed a foreclosure action against the Snows on March 12, 2008, alleging, inter alia:
On June 28, 2011, Wells Fargo voluntarily dismissed, without prejudice, the foreclosure action against the Snows. Thereafter, on March 5, 2013, Wells Fargo filed a second foreclosure action against the Snows. The Snows answered this complaint and alleged as an affirmative defense that the expiration of the five-year statute of limitations barred the second foreclosure action.
At trial, the Snows argued that the second foreclosure action was barred by the statute of limitations because the limitations period began to run on January 10, 2008 (the date by which the Snows were required, pursuant to the notice of default letter, to cure the default) and expired five years later (on January 10, 2013), three months prior to the filing date of the second foreclosure action. In other words, the Snows argued, because they failed to cure the default within the time period set forth in the default letter, the debt was automatically accelerated on January 10, 2008.
Wells Fargo contended that the date of acceleration was not January 10, 2008, but rather March 12, 2008, the date the complaint was filed in the first foreclosure action. Therefore, Wells Fargo argued, the five-year limitations period1 had not yet expired when Wells Fargo filed the second lawsuit on March 5, 2013. The December 7, 2007 letter, it argued, was a notice of default and a notice that Wells Fargo would take future action, including but not limited to acceleration of the debt and the filing of a foreclosure action, if the default was not cured.
The trial court determined that the debt was accelerated on the date Wells Fargo filed the lawsuit on March 12, 2008; that the statute of limitations commenced on that date; and that the second foreclosure action (filed on March 5, 2013) was accomplished prior to the expiration of the five-year limitations period. Final judgment of foreclosure was entered thereafter, and this appeal followed. We review this statute of limitations issue de novo. Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081 (Fla. 3d DCA 2014).
When an acceleration clause is absolute, the entire indebtedness becomes due immediately upon default. Such an acceleration is self-executing, requiring neither notice of default nor some further action to accelerate the debt. Baader v. Walker, 153 So.2d 51 (Fla. 2d DCA 1963). By contrast, where the acceleration clause is optional (as it is in this case), it is not automatic or self-executing, but requires the lender to exercise this option and to give notice to the borrower that it has done so. See Campbell v. Werner, 232 So.2d 252, 254 n. 1 (Fla. 3d DCA 1970) ( ); Rones v. Charlisa, Inc., 948 So.2d 878, 879 (Fla. 4th DCA 2007) (quoting Central Home Trust Co. of Elizabeth...
To continue reading
Request your trial-
Pushard v. Bank of Am., N.A.
...clause [gave the lender] the right, but not the obligation, to accelerate payments on the Note."); Snow v. Wells Fargo Bank, N.A. , 156 So.3d 538, 541 (Fla. Dist. Ct. App. 2015) ; Found. Prop. Invs., LLC v. CTP, LLC , 286 Kan. 597, 186 P.3d 766, 771–72 (2008) ; Note, Acceleration Clauses in......
-
Wilmington Sav. Fund Soc'y, FSB v. Holverson
...the amount due for October and any additional regular payments and charges that came due before December 17, 2008. See Snow [v. Wells Fargo Bank, N.A. ], 156 So. 3d at 542 (holding that the portion of a notice letter that stated ‘[i]f you do not pay the full amount of the default, we shall ......
-
Wilmington Sav. Fund Soc'y, FSB v. Holverson
...due was not stated. For example, only the amount required to cure the default was stated: $5,568.65. See Snow v. Wells Fargo Bank, N.A,, 156 So. 3d 538, 542 (2015) (holding that the portion of a notice letter that stated "[i]f you do not pay the full amount of the default, we shall accelera......
-
Bank of Am., N.A. v. Graybush, 4D17-1256
...but requires the lender to exercise this option and to give notice to the borrowers that it has done so." Snow v. Wells Fargo Bank, N.A. , 156 So.3d 538, 542 (Fla. 3d DCA 2015) ; see also Reano v. U.S. Bank Nat'l Ass'n , 191 So.3d 959, 961 (Fla. 4th DCA 2016). On appeal, both parties correc......