final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 15-30090, Barbara Areces, Judge.
Carlton Fields Jorden Burt, P.A., and Michael K. Winston and
Dean A. Morande (West Palm Beach), for appellant.
del C. Rendon a/k/a Maria del Carmen Rendon, in proper
ROTHENBERG, C.J., and LAGOA and LUCK, JJ.
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.
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
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
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.
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, 944-45 (Fla. 3d DCA 2016 (en banc) (emphasis in
original)); see also Bartram v. U.S. Bank Nat'l
Ass'n, 211 So.3d 1009, 1019 (Fla. 2016)
("[W]ith each subsequent default, the statute of
limitations runs from the date of each new default providing
the mortgagee the right, but not the obligation, to
accelerate all sums then due under the note and mortgage. . .
. [T]he statute of limitations on the balance under the note
and mortgage would not continue to run after an involuntary
dismissal, and thus the mortgagee would not be barred by the
statute of limitations from filing a successive foreclosure
action premised on a 'separate and distinct' default.
Rather, after the dismissal, the parties are simply placed
back in the same contractual relationship as before, where
the residential mortgage remained an installment loan, and
the acceleration of the residential mortgage declared in the
unsuccessful foreclosure action is revoked.");
Nationstar Mortg., LLC v. Silva, 3D16-1936 (Fla. 3d
DCA Mar. 7, 2018); Bank of New York Mellon Corp. v.
Anton, 230 So.3d 502, 504 (Fla. 3d DCA 2017)
("Given the allegation that Anton failed to make all
subsequent payments, the mere fact that the second
foreclosure complaint alleged the same initial
default date as that alleged in the first foreclosure
complaint (i.e., August 1, 2008), is of no moment: by
alleging that Anton failed to make the payment due on August
1, 2008 'and all subsequent payments, ' the action
alleged a series of defaults by Anton on all payments due
beginning on August 1, 2008 and continuing up to the date of
the filing of the second foreclosure action on December 19,
2014.") (emphasis in original). Accordingly, we reverse
the entry of final summary judgment in favor of Rendon and
remand for further proceedings.
on our resolution of the above issue, we find it unnecessary
to address the ...