Deutsche Bank Trust Co. Americas v. Beauvais

Following a rare en banc oral argument, the Third District Court of Appeal reversed its prior decision and released a new en banc opinion in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575 (Fla. 3d DCA April 13, 2016).  In its split 6-4 decision, the Third District held that dismissal of a foreclosure action accelerating payment on one default does not time-bar a subsequent foreclosure action on a later default if the subsequent default occurred within five years of the subsequent action (i.e., within the five year statute of limitations governing mortgage foreclosures).  Significantly, the court held that whether dismissal is “with” or “without” prejudice is irrelevant to a lender’s right to file subsequent foreclosure actions on subsequent defaults.

In Beauvais, the bank appealed a final summary judgment that denied foreclosure of a mortgage securing a $1.4 million promissory note. The bank filed a complaint in 2012, alleging entitlement to relief by virtue of the debtor’s failure to pay an installment payment, as well as “all subsequent payments.”  Previously, in 2007, the bank’s predecessor had also filed suit based on default and had elected to accelerate the payment of the balance due on the note and mortgage.  The 2007 action was dismissed without prejudice when the predecessor bank failed to appear at a case management conference.  The trial court found that the 2007 lawsuit had triggered the statute of limitations such that the 2012 action was time-barred.  The Third District’s prior decision had affirmed the trial court.

Now, however, the Third District has found that reversal is required pursuant to the Florida Supreme Court’s decision in Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004).  In so doing, the Third District agreed with the Fifth District Court of Appeal in U.S. Bank Nat’l Ass’n v. Bartram, 140 So. 3d 1007, 1014 (Fla. 5^th DCA 2014).  Notably, however, the Florida Supreme Court has granted review in Bartram.  A decision is pending.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

Knowles v. Bank of New York Mellon

In Knowles v. Bank of New York Mellon, No. 4D15-630 (Fla. 4th DCA March 30, 2016), the Fourth District Court of Appeal reversed the trial court’s final judgment of foreclosure in favor of the appellee bank.  The bank had conceded error based on case law issued after trial; specifically, Jelic v. LaSalle Bank, Nat’l Ass’n, 160 So. 3d 127, 130 (Fla. 4th DCA 2015), and Balch v. LaSalle Bank N.A., 171 So. 3d 207, 209 (Fla. 4th DCA 2015).

In both Jelic and Balch, the Fourth District Court of Appeal reversed a final judgment of foreclosure, in part due to lack of evidence that the party transferring the note into a trust had any intent to transfer an interest to the trustee.  In both Jelic and Balch, the Fourth DCA remanded for entry of an involuntary dismissal.

In Knowles, the bank conceding error requested remand for a new trial.  However, the Fourth DCA found that the proper remedy, as in Jelic and Balch, was remand for entry of an involuntary dismissal.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.

American Management Services & Fedorak v. Merced

In American Management Services & Fedorak v. Merced, No. 4D15-1385 (Fla. 4th DCA March 2, 2016), the Fourth District Court of Appeal reversed the denial of a motion to compel arbitration.  The appellate court found that the trial court erred by failing to set an expedited evidentiary hearing on substantial disputed issues regarding the making of the arbitration agreement.

An employee had sued her former employer, alleging negligent and intentional infliction of emotional distress, violation of the Florida Whistleblower Act, and violation of the Florida Civil Rights Act.  The employer filed a motion to compel arbitration, alleging that the employee electronically signed an arbitration agreement upon applying for employment.

The employee opposed the motion, asserting in a sworn affidavit that she never executed the arbitration agreement. In response, the employer filed a sworn declaration that the employee had typed the date, her name, and full social security number in an online application. The trial court denied the motion, stating there were factual issues that needed to be resolved after additional discovery. The Fourth District found that it was error to deny the motion pending further discovery without setting an expedited hearing.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.