Third District Court of Appeal
State of Florida
Opinion filed May 2, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1088
Lower Tribunal No. 14-21829
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Deutsche Bank National Trust Company, etc.,
Appellant,
vs.
Idalys R. Torres,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces,
Judge.
Lapin & Leichtling, LLP, and Benjamin B. Carter, for appellant.
Dennis A. Donet, P.A., and Dennis A. Donet, for appellee.
Before SALTER, EMAS and LINDSEY, JJ.
PER CURIAM.
Deutsche Bank National Trust Company appeals from a final judgment
dismissing its foreclosure action against Idalys Torres. The trial court determined
that, because the complaint was filed more than five years after the alleged initial
default date, the action was barred by the applicable five-year statute of
limitations. See § 95.11(2)(c), Fla. Stat. (2014). Finding this conclusion contrary
to the current law, we reverse.
Deutsche Bank filed the subject complaint in August 2014, and alleged an
initial default date of May 1, 2008. However, the complaint also alleges that the
borrower defaulted “by failing to pay the payment due 5/01/2008 and all other
subsequent payments.” (Emphasis added.)
At the time the trial court entered its final judgment of dismissal in March
2016, the case law in this area was arguably in a state of flux, but that is no longer
the situation.1 Shortly after the final judgment was entered in this case, the
Florida Supreme Court issued its opinion in Bartram v. U.S. Bank, N.A., 211 So.
3d 1009, 1019 (Fla. 2016) (holding that “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
1 Generally, an appellate court must apply decisional law as it exists at the time of
the appeal. See, e.g., Lowe v. Price, 437 So. 2d 142, 144 (Fla. 1983) (holding:
“Decisional law and rules in effect at the time an appeal is decided govern the case
even if there has been a change since time of trial.”); Bank of New York Mellon
Corp. v. Anton, 230 So. 3d 502, 503 n.1 (Fla. 3d DCA 2017).
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mortgage”). See also Deutsche Bank Trust Co. Americas v. Beauvais, 188 So. 3d
938, 945 (Fla. 3d DCA 2016) (en banc) (holding that, even if the alleged initial
default date was more than five years before the complaint was filed, the action
was not barred by the statute of limitations where “the bank alleged the failure to
pay the October 1, 2006 installment payment ‘and all subsequent payments’”).
While Deutsche Bank may be barred from seeking certain defaulted
payments under the note (those falling outside the five-year statute of limitations),
it may still seek to foreclose and to collect on all defaulted payments not otherwise
barred by the statute of limitations. We have followed the principles established in
Bartram and Beauvais in several decisions indistinguishable in all material respects
from the instant case. See Wells Fargo Bank, N.A. v. Rendon, No. 3D17-408 (Fla.
3d DCA April 18, 2018); Nationstar Mortg., LLC v. Silva, 43 Fla. L. Weekly
D548 (Fla. 3d DCA March 7, 2018); Bank of New York Mellon v. Anton, 230 So.
3d 502 (Fla. 3d DCA 2017); Dhanasar v. JP Morgan, 201 So. 3d 825 (Fla. 3d DCA
2016).
We reverse the final judgment of dismissal and remand for further
proceedings consistent with this opinion.
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