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. 5th 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.