from the Circuit Court for Manatee County; Thomas M. Gallen,
W. Smith, Law Office of David W. Smith, Sarasota, for
T. Weitz, of Weitz & Schwartz, P.A., Fort Lauderdale, for
Appellee, The Bank of New York Mellon.
appearance by remaining Appellees.
motion for rehearing and certification filed March 9, 2017,
is granted only to the extent that this court's opinion
dated February 22, 2017, is withdrawn and the attached
opinion is issued in its place. No further motions for
rehearing will be entertained.
Desylvester appeals a final judgment of mortgage foreclosure
entered against him and Joy Freeman and in favor of The Bank
of New York Mellon (the Bank) following a nonjury trial.
Although we affirm the judgment, we write to address the
issue of the application of the statute of limitations in a
subsequent foreclosure action filed after the dismissal of an
initial action for the foreclosure of the same note and
THE FACTS AND THE PROCEDURAL BACKGROUND
September 20, 2005, Mr. Desylvester and Ms. Freeman executed
an adjustable rate note in the amount of $1, 500, 000 in
favor of "Esecond Mortgage.com in [sic] DBA Dollar
Realty Mtg." The terms of the note required the
borrowers to make monthly payments of principal and interest,
beginning on November 1, 2005, and ending on October 1, 2035.
same day, Mr. Desylvester and Ms. Freeman executed a standard
residential mortgage securing the note with real property
located in Sarasota County. The mortgage named "Esecond
Mortgage.com in [sic] DBA Dollar Realty Mtg." as the
lender and Mortgage Electronic Registration Systems, Inc.
(MERS), as the mortgagee as nominee for the lender and the
lender's successors and assigns. Both the note and the
mortgage contained optional acceleration clauses authorizing
acceleration of the principal and interest due on the note to
maturity in the event of a default by the borrowers. In
addition, the standard form residential mortgage included a
reinstatement provision in paragraph 19 titled,
"Borrower's Right to Reinstate After
Acceleration."The Bank filed the original note with the
trial court in the underlying litigation. An allonge was
attached to the note. The allonge bore two indorsements. The
first indorsement was from the original lender to Countrywide
Home Loans, Inc., dba America's Wholesale Lender. The
second indorsement from Countrywide was in blank.
Bank filed two foreclosure actions on the note and mortgage.
It filed the first foreclosure action against Mr.
Desylvester, Ms. Freeman, and other parties on November 15,
2012. The Bank attached a copy of the note, including the
allonge bearing both of the indorsements, and a copy of the
mortgage to its complaint. The Bank alleged that the mortgage
had been assigned to it under an assignment from MERS dated
May 10, 2011, and attached a copy of the assignment. With
regard to the default, the Bank alleged that the borrowers
had defaulted on their regular monthly payment due on October
1, 2008, "and all subsequent payments." The Bank
also accelerated the note by declaring the full amount due
under the note to be due and payable. The first action was
dismissed for reasons that are unexplained in our record.
on December 9, 2014, the Bank filed a second foreclosure
action against the borrowers and others on the same note and
mortgage. As it did in the first action, the Bank alleged in
its complaint that the borrowers had defaulted on the note
and mortgage by failing to make the payment due on October 1,
2008, "and all subsequent payments due thereafter."
Once again, the Bank accelerated the unpaid principal and
interest to maturity by declaring the full amount to be due
Desylvester filed an answer and affirmative defenses to the
complaint in the second action for foreclosure. He generally
denied the material allegations of the complaint, including
the allegation that he had defaulted on the payment due on
October 1, 2008, and "all subsequent payments due
thereafter." In his second affirmative defense, Mr.
Desylvester alleged that the statute of limitations had run
with regard to the alleged default in payment on October 1,
2008, because any such default had occurred more than five
years before the filing of the second foreclosure complaint.
Mr. Desylvester asserted that "[a]ny suit to foreclose
based upon an October 1, 2008 default would have had to been
filed prior to October 1, 2013, or otherwise be barred
forever." Mr. Desylvester concluded that because the
second action was filed on December 9, ...