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Bank of New York Mellon Corporation v. Anton

Florida Court of Appeals, Third District

August 30, 2017

The Bank of New York Mellon Corporation as Trustee, etc., Appellant,
v.
Alejandro O. Anton, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An 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.

          Before EMAS, FERNANDEZ and LUCK, JJ.

          EMAS, J.

         Appellant, 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.

         On 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.

         On 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.

         Thereafter, 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 concluded:

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.

         This appeal follows.

         Upon 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.

         However, 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 ...


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