The Bank of New York Mellon Corporation as Trustee, etc., Appellant,
Alejandro O. Anton, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Peter R.
Lopez, Judge. Lower Tribunal No. 14-31950
Akerman LLP, Nancy M. Wallace (Tallahassee), William P.
Heller (Fort Lauderdale) and Eric M. Levine (West Palm
Beach), for appellant.
Matthew Estevez, for appellee.
EMAS, FERNANDEZ and LUCK, JJ.
The Bank of New York Mellon Corporation (BONYM), appeals the
trial court's order granting summary final judgment in
favor of appellee, Alejandro O. Anton. For the reasons that
follow, we reverse.
October 29, 2009, BONYM filed a complaint to foreclose on
residential property owned by Anton, alleging that BONYM
"has not been paid the payment due August 1, 2008, and
all subsequent payments, which has resulted in a default of
the note and mortgage." In its complaint, BONYM
"declares the full amount due under the note and
mortgage to be accelerated." On December 5, 2011, the
trial court dismissed this action for lack of prosecution.
December 19, 2014, BONYM filed a second action to foreclose
on Anton's property. The complaint in the second
foreclosure action alleged that Anton "has defaulted on
the promissory note and mortgage by failing to pay the
payment due on August 1, 2008, and all subsequent
payments." BONYM again declared the full amount due
under the mortgage and note to be accelerated.
Anton filed a motion for summary judgment, contending that
the second foreclosure action was barred by the five-year
statute of limitations. See § 95.11(2)(c), Fla.
Stat. (2009). The trial court entered final judgment in favor
of Anton. In doing so, the trial court took judicial notice
of the pleadings filed in the first foreclosure action and
There is no genuine issue of material fact. Plaintiff clearly
and unequivocally accelerated all sums due under the subject
promissory note on October 29, 2009 - the date it filed its
prior Complaint for Foreclosure. Plaintiff's prior
foreclosure suit was subsequently dismissed without
prejudice, for lack of prosecution. As such, the applicable
statute of limitations expired on October 28, 2014 - 5 years
after the cause of action accrued. See Section
§95.11(2)(c), Fla. Stat. The instant suit to foreclose
the mortgage was filed December 14, 2014 - after the Statute
of Limitations expired.
our de novo review, Volusia Cty. v. Aberdeen at Ormond
Beach, L.P., 760 So.2d 126, 130 (Fla. 2000), we hold
that the trial court's entry of summary judgment was
erroneous. The trial court found that, because the payments
due under the note and mortgage were accelerated by the
filing of the first action in October 2009, the second action
(commenced more than five years later, in December 2014) was
barred by the statute of limitations.
this reasoning was rejected by the Florida Supreme Court in
Bartram v. U.S. Bank National Association, 211 So.3d
1009 (Fla. 2016), and by this court in Deutsche Bank
Trust Co. Americas ...