Wells Fargo Bank, NA, as Trustee, on behalf of the Holders of Structured Asset Mortgage Investments II, Inc., Bear Stearns Mortgage Funding, Trust 2007-AR4, Mortgage Pass Through Certificates, Series 2007-AR4, Appellant,
BH-NV Investments 1, LLC, Appellee.
Appeal from the Circuit Court for Miami-Dade County, Robert
J. Luck, Judge. Lower Tribunal No. 15-15951
Holland & Knight, LLP, and Brian K. Hole and Philip E.
Rothschild (Fort Lauderdale), for appellant.
Matthew Estevez, P.A., and Matthew Estevez, for appellee.
LAGOA, FERNANDEZ, and SCALES, JJ. LAGOA, J.
Appellant, Wells Fargo Bank, NA, as Trustee, on behalf of the
Holders of Structured Asset Mortgage Investments II, Inc.,
Bear Stearns Mortgage Funding, Trust 2007-AR4, Mortgage Pass
Through Certificates, Series 2007-AR4 ("Trustee")
appeals from the trial court's order entering final
summary judgment in favor of Appellee, BH-NV Investments 1,
LLC ("BH-NV"). We reverse.
FACTUAL AND PROCEDURAL HISTORY
significance to this appeal, on June 15, 2009, the Trustee
filed a complaint to foreclose on the subject property and
alleged that the Borrower defaulted by failing to pay the
December 1, 2008, payment and all subsequent payments (the
"First Foreclosure Action"). On April 1, 2011, the
trial court dismissed the First Foreclosure Action for lack
on July 14, 2015, the Trustee filed a second foreclosure
action on the subject property, and alleged that the Borrower
defaulted by failing to pay the August 1, 2010, payment and
all subsequent payments (the "Second Foreclosure
BH-NV filed a Motion for Summary
Judgment asserting that the Second Foreclosure Action was
barred by the applicable statute of limitations. At the
summary judgment hearing, counsel for BH-NV relied on this
Court's opinion in Deutsche Bank Trust Co. Americas
v. Beauvais, 40 Fla.L.Weekly D1 (Fla. 3d DCA Dec. 17,
2014) ("Beauvais I"). Following the
hearing, the trial court entered a written order granting
BH-NV's motion "on statute of limitations
grounds." This timely appeal ensued.
appeal, the Trustee contends that this Court's en banc
decision in Deutsche Bank Trust Co. Americas v.
Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016)
("Beauvais II"), which withdrew
Beauvais I, requires reversal of the trial
court's order finding that the Second Foreclosure Action
was barred by the applicable statute of limitations. We
agree. As this Court concluded in Beauvais II,
"dismissal of a foreclosure action accelerating payment
on one default does not bar a subsequent foreclosure action
on a later default if the subsequent default occurred within
five years of the subsequent action." Id. at
the Florida Supreme Court's subsequent opinion in
Bartram v. U.S. Bank National Ass'n, 211 So.3d
1009 (Fla. 2016), reached the same conclusion on the question
at issue here-whether a subsequent foreclosure action filed
after an initial foreclosure action that sought acceleration
but was later dismissed is barred by the applicable statute
of limitations. In Bartram, the Florida Supreme
Court concluded that a "Bank had the right to file a
subsequent foreclosure action-and to seek acceleration of all
sums due under the note-so long as the foreclosure action was
based on a subsequent default, and the statute of limitations
had not run on that particular default." Id. at
both Bartram and Beauvais II hold that a
subsequent foreclosure action is not barred so long as the
second action is brought on a subsequent default within the
five-year statute of limitations period found in section
95.11(2)(c), Florida Statutes. A review of the record
evidence in this case shows that the default in the Second
Foreclosure Action is different than the default in the First
Foreclosure Action. Moreover, the record evidence further
establishes that the later default occurred within five years
of the filing of that subsequent action.
we reverse the final judgment and remand to the trial court
for reinstatement of the complaint in light of the Florida
Supreme Court's opinion in Bartram and this
Court's opinion in Beauvais II. We note that the
trial court did not have the benefit of ...