Wells Fargo Bank, N.A. v. Rendon

• Citation: 245 So.3d 917
• Decision Date: 18 April 2018
• Docket Number: No. 3D17–408,3D17–408
• Parties: WELLS FARGO BANK, N.A., Appellant, v. Maria del C. RENDON a/k/a Maria del Carmen Rendon, etc., et al., Appellees.
• Court: Court of Appeal of Florida (US)

245 So.3d 917

WELLS FARGO BANK, N.A., Appellant,

v.Maria del C. RENDON a/k/a Maria del Carmen Rendon, etc., et al., Appellees.

No. 3D17–408

District Court of Appeal of Florida, Third District.

Opinion filed April 18, 2018

Carlton Fields Jorden Burt, P.A., and Michael K. Winston and Dean A. Morande (West Palm Beach), for appellant.

Maria del C. Rendon a/k/a Maria del Carmen Rendon, in proper person.

Before ROTHENBERG, C.J., and LAGOA and LUCK, JJ.

ROTHENBERG, C.J.

Wells Fargo Bank, N.A. ("Wells Fargo") appeals from an order entering final summary judgment in favor of Maria del C. Rendon, etc., et al. (collectively, "Rendon") based on the trial court's determination that the action was barred by the expiration of the applicable five-year statute of limitations. § 95.11(2)(c), Fla. Stat. (2015). For the reasons that follow, we reverse.

On June 30, 2009, Wells Fargo filed a residential foreclosure action against Rendon, alleging that there had been a default under the note and mortgage held by Wells Fargo due to Rendon's failure to make the payment due on February 1, 2009, and all subsequently due payments. Further, Wells Fargo declared the full amount payable under the Note and Mortgage to be due. In October 2011, the trial court dismissed the case without prejudice due to Wells Fargo's failure to appear at the non-jury trial.

In December 2015, Wells Fargo filed a second action to foreclose on Rendon's property. The complaint alleged that Rendon failed to make "the payment due for February 1, 2009, and all subsequent payments have not been made" and declared the full amount due under the note and mortgage to be accelerated.

Rendon then moved for summary judgment, arguing that the second foreclosure action was time-barred by the five-year statute of limitations. § 95.11(2)(c), Fla. Stat. (2015). Specifically, Rendon asserted that the December 2015 action was Wells Fargo's second attempt to foreclose on the same real property based on Rendon's failure to make the mortgage payment due on February 1, 2009. Further, because Wells Fargo accelerated the mortgage provisions in the first foreclosure action filed in June 2009, the second foreclosure action was time barred as it was commenced more than five years after the first foreclosure action was filed. The trial court agreed and entered final summary judgment in favor of Rendon. Wells Fargo's appeal followed.

We review the trial court's entry of summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). We conclude that the trial court erred by determining that Wells Fargo's second foreclosure action was barred by the five-year statute of limitations. Because Wells Fargo's complaint specifically alleged that Rendon missed the February 1, 2009 payment and "all subsequent payments " (emphasis added), Wells Fargo's complaint survived the alleged expiration of the statute of limitations. See Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825, 826 (Fla. 3d DCA 2016) ("Because the Bank's complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments , and the action was filed within five years of a default payment, we agree with the trial court's conclusion that the action survived the asserted statute of limitations bar.") (citing Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938,...