IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
June 14, 2017
JOHN DESYLVESTER, )
)
Appellant, )
)
v. ) Case No. 2D15-5053
)
THE BANK OF NEW YORK MELLON )
F/K/A THE BANK OF NEW YORK, as )
Trustee, on behalf of the Holders of the )
Alternative Loan Trust 2005-62, Mortgage )
Pass-Through Certificates Series 2005-62; )
JOY FREEMAN; MORTGAGE )
ELECTRONIC REGISTRATION )
SYSTEMS, INC., as Nominee for Esecond )
Mortgage.com in DBA Dollar Realty )
Mortgage; HARBOUR WALK )
HOMEOWNERS' ASSOCIATION, INC.; )
THE INLETS AT RIVERDALE, INC.; and )
TENANT, )
)
Appellees. )
)
BY ORDER OF THE COURT:
Appellant's motion for rehearing and certification filed March 9, 2017, is
granted only to the extent that this court's opinion dated February 22, 2017, is
withdrawn and the attached opinion is issued in its place. No further motions for
rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL, CLERK
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOHN DESYLVESTER, )
)
Appellant, )
)
v. ) Case No. 2D15-5053
)
THE BANK OF NEW YORK MELLON )
F/K/A THE BANK OF NEW YORK, as )
Trustee, on behalf of the Holders of the )
Alternative Loan Trust 2005-62, Mortgage )
Pass-Through Certificates Series 2005-62; )
JOY FREEMAN; MORTGAGE )
ELECTRONIC REGISTRATION )
SYSTEMS, INC., as Nominee for Esecond )
Mortgage.com in DBA Dollar Realty )
Mortgage; HARBOUR WALK )
HOMEOWNERS' ASSOCIATION, INC.; )
THE INLETS AT RIVERDALE, INC.; and )
TENANT, )
)
Appellees. )
)
Opinion filed June 14, 2017.
Appeal from the Circuit Court for Manatee
County; Thomas M. Gallen, Senior Judge.
David W. Smith, Law Office of David W.
Smith, Sarasota, for Appellant.
Sarah T. Weitz, of Weitz & Schwartz,
P.A., Fort Lauderdale, for Appellee, The
Bank of New York Mellon.
No appearance by remaining Appellees.
WALLACE, Judge.
John Desylvester appeals a final judgment of mortgage foreclosure
entered against him and Joy Freeman and in favor of The Bank of New York Mellon (the
Bank) following a nonjury trial. Although we affirm the judgment, we write to address
the issue of the application of the statute of limitations in a subsequent foreclosure
action filed after the dismissal of an initial action for the foreclosure of the same note
and mortgage.
I. THE FACTS AND THE PROCEDURAL BACKGROUND
On September 20, 2005, Mr. Desylvester and Ms. Freeman executed an
adjustable rate note in the amount of $1,500,000 in favor of "Esecond Mortgage.com in
[sic] DBA Dollar Realty Mtg." The terms of the note required the borrowers to make
monthly payments of principal and interest, beginning on November 1, 2005, and
ending on October 1, 2035.
On the same day, Mr. Desylvester and Ms. Freeman executed a standard
residential mortgage securing the note with real property located in Sarasota County.
The mortgage named "Esecond Mortgage.com in [sic] DBA Dollar Realty Mtg." as the
lender and Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee
as nominee for the lender and the lender's successors and assigns. Both the note and
the mortgage contained optional acceleration clauses authorizing acceleration of the
principal and interest due on the note to maturity in the event of a default by the
borrowers. In addition, the standard form residential mortgage included a reinstatement
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provision in paragraph 19 titled, "Borrower's Right to Reinstate After Acceleration." 1
The Bank filed the original note with the trial court in the underlying litigation. An
allonge was attached to the note. The allonge bore two indorsements. The first
indorsement was from the original lender to Countrywide Home Loans, Inc., dba
America's Wholesale Lender. The second indorsement from Countrywide was in blank.
The Bank filed two foreclosure actions on the note and mortgage. It filed
the first foreclosure action against Mr. Desylvester, Ms. Freeman, and other parties on
November 15, 2012. The Bank attached a copy of the note, including the allonge
bearing both of the indorsements, and a copy of the mortgage to its complaint. The
Bank alleged that the mortgage had been assigned to it under an assignment from
MERS dated May 10, 2011, and attached a copy of the assignment. With regard to the
default, the Bank alleged that the borrowers had defaulted on their regular monthly
payment due on October 1, 2008, "and all subsequent payments." The Bank also
accelerated the note by declaring the full amount due under the note to be due and
payable. The first action was dismissed for reasons that are unexplained in our record.
Subsequently, on December 9, 2014, the Bank filed a second foreclosure
action against the borrowers and others on the same note and mortgage. As it did in
the first action, the Bank alleged in its complaint that the borrowers had defaulted on the
note and mortgage by failing to make the payment due on October 1, 2008, "and all
subsequent payments due thereafter." Once again, the Bank accelerated the unpaid
principal and interest to maturity by declaring the full amount to be due and payable.
1The reinstatement provision of the standard form residential mortgage is
quoted in Justice Lewis's concurrence in Bartram v. U.S. Bank National Ass'n, 211 So.
3d 1009, 1023 n.8 (Fla. 2016) (Lewis, J., concurring in result only).
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Mr. Desylvester filed an answer and affirmative defenses to the complaint
in the second action for foreclosure. He generally denied the material allegations of the
complaint, including the allegation that he had defaulted on the payment due on
October 1, 2008, and "all subsequent payments due thereafter." In his second
affirmative defense, Mr. Desylvester alleged that the statute of limitations had run with
regard to the alleged default in payment on October 1, 2008, because any such default
had occurred more than five years before the filing of the second foreclosure complaint.
Mr. Desylvester asserted that "[a]ny suit to foreclose based upon an October 1, 2008
default would have had to been filed prior to October 1, 2013, or otherwise be barred
forever." Mr. Desylvester concluded that because the second action was filed on
December 9, 2014, it was barred by the statute of limitations. In a third affirmative
defense, Mr. Desylvester alleged that the Bank did not have standing to foreclose at the
inception of the second foreclosure action.
The trial court held a bench trial for the second foreclosure action in
September 2015. Jill Dietrich testified on behalf of the Bank. Ms. Dietrich was an
employee of Select Portfolio Servicing, Inc. (SPS), the servicer for the loan. She was
qualified to testify about SPS's business records for the loan. Ms. Dietrich identified the
original note, the mortgage, and the assignment of mortgage, which the trial court
received in evidence. Ms. Dietrich also identified a document reflecting the payment
history on the note, which showed that the last payment received had been applied to
the September 1, 2008, installment; no payments had been received on the note
thereafter. The trial court also received this document in evidence.
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On October 26, 2015, the trial court entered the final judgment of
foreclosure. Mr. Desylvester appealed the final judgment. Ms. Freeman has not joined
in the appeal or otherwise appeared in this case.
II. MR. DESYLVESTER'S APPELLATE ARGUMENTS
On appeal, Mr. Desylvester raises three points. First, he argues that the
Bank failed to present evidence sufficient to establish the alleged default in payment.
Second, Mr. Desylvester contends that the Bank failed to establish its standing to
foreclose at the inception of the second action. Third, he argues that the Bank's action
is barred by the applicable statute of limitations.
Competent substantial evidence in the record demonstrates that the Bank
established the alleged default in payment and its standing to foreclose at the inception
of the action. Mr. Desylvester's arguments on these points are without merit and do not
warrant further discussion. We turn now to a discussion of Mr. Desylvester's argument
concerning the statute of limitations.
III. DISCUSSION
We apply a de novo standard of review to the issue of the application of
the statute of limitations to the Bank's action for foreclosure. Nationstar Mortg., LLC v.
Sunderman, 201 So. 3d 139, 140 (Fla. 3d DCA 2015); see also Hamilton v. Tanner, 962
So. 2d 997, 1000 (Fla. 2d DCA 2007) ("A legal issue surrounding a statute of limitations
question is an issue of law subject to de novo review.").
Mr. Desylvester argues that the trial court erred in entering the final
judgment of foreclosure in favor of the Bank because the Bank's action was barred by
the five-year statute of limitations applicable to actions on a written instrument. See §
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95.11(2)(c), Fla. Stat. (2008). In Mr. Desylvester's view, the Bank's action was barred
because it was filed more than five years after the date of default, i.e., October 1, 2008.
The Bank filed the underlying second foreclosure action on December 9, 2014. Mr.
Desylvester claims that in order for the action to be timely, the Bank had to file its
complaint before October 1, 2013. Mr. Desylvester concludes that "a complaint is
barred by the statute of limitations in a subsequent foreclosure if the alleged date of
default is older than five years."
The recent decision of the Florida Supreme Court in Bartram v. U.S. Bank
National Ass'n, 211 So. 3d 1009 (Fla. 2016), resolves the question of the application of
the statute of limitations in the residential mortgage foreclosure context at issue here in
favor of the Bank. With regard to the application of the statute of limitations in a
subsequent foreclosure action after an initial foreclosure action that sought acceleration
was dismissed, the Bartram court said:
Therefore, with 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.
Consistent with the reasoning of Singleton[ v.
Greymar Associates, 882 So. 2d 1004 (Fla. 2004)], the
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.
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Bartram, 211 So. 3d at 1019. This result follows regardless of whether the dismissal of
the initial foreclosure action was entered with or without prejudice. Id. Accordingly, we
conclude that the dismissal of the Bank's earlier foreclosure action did not trigger the
statute of limitations to bar the Bank's subsequent foreclosure action based on separate
defaults. See id.
We recognize that in the underlying action the Bank alleged that the
borrowers defaulted on the note by failing to make the payment due on October 1,
2008, "and all subsequent payments due thereafter." Granted, the October 1, 2008,
date was the date alleged as the date of the initial default in the first foreclosure action,
and this date was outside the period of the five-year statute of limitations. Nevertheless,
the allegations of the complaint in the underlying action that the borrowers were in a
continuing state of default at the time of the filing of the complaint was sufficient to
satisfy the five-year statute of limitations. See Bollettieri Resort Villas Condo. Ass'n v.
Bank of N.Y. Mellon, 198 So. 3d 1140, 1142 (Fla. 2d DCA), review granted, No. SC16-
1680 (Fla. Nov. 2, 2016). Thus, the facts of this case are distinguishable from the facts
in Collazo v. HSBC Bank USA, N.A., 41 Fla. L. Weekly D2315 (Fla. 3d DCA Oct. 13,
2016). In Collazo, unlike in this case, the plaintiff insisted on trying the case on the
basis of a date of default that was outside the five-year statute of limitations period. Id.
at D2315. Here, in addition to alleging the initial date of default as October 1, 2008, the
Bank alleged that the borrowers were in a continuing state of default up to the time of
the filing of the complaint.
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IV. CONCLUSION
It follows from the foregoing analysis that the underlying action was not
barred by the five-year statute of limitations. For this reason, and because Mr.
Desylvester's other points are without merit, we affirm the final judgment of foreclosure.
As this court did in Bollettieri Resort Villas, 198 So. 3d at 1142-43, we
certify conflict with the holding of the Fifth District in Hicks v. Wells Fargo Bank, N.A.,
178 So. 3d 957, 959 (Fla. 5th DCA 2015), to the extent that our decision conflicts with
the holding in Hicks.
Affirmed; conflict certified.
SLEET and SALARIO, JJ., Concur.
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