H/T Dave Krieger
Third District Court of Appeal
State of Florida
Opinion filed December 17, 2014.
Not final until disposition of timely filed motion for rehearing.
Lower Tribunal No. 12-49315
Deutsche Bank Trust Company Americas, etc.,
Harry Beauvais, et al.,
An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez,
K & L Gates LLP, William P. McCaughan, Steven R. Weinstein and
Stephanie N. Moot, for appellant.
Sigfried, Rivera, Hyman, De La Torre, Mass & Sobel, Steven M. Siegfried
and Nicholas Sigfried; The Wallen Law Firm and Todd L. Wallen, for appellees.
Before SHEPHERD, C.J., and EMAS and SCALES, JJ.
Deutsche Bank Trust Company Americas, as Indenture Trustee for
American Home Mortgage Investment Trust 2006-2 (“Deutsche Bank”), appeals
from the trial court’s order of final summary judgment in favor of Aqua Master
Association, Inc. (“the Association”). Deutsche Bank asserts the trial court erred
in concluding that the expiration of the statute of limitations barred the cause of
action and rendered the lien of mortgage on the property null and void. The
following issue is squarely raised in this case:
Where a lender files a foreclosure action upon a borrower’s default,
and expressly exercises its contractual right to accelerate all payments,
does an involuntary dismissal of that action without prejudice in and
of itself negate, invalidate or otherwise “decelerate” the lender’s
acceleration of the payments, thereby permitting a new cause of action
to be filed based upon a new and subsequent default?
We answer that question in the negative, and hold that the involuntary
dismissal without prejudice of the foreclosure action did not by itself negate,
invalidate or otherwise decelerate the lender’s acceleration of the debt in the initial
action. The lender’s acceleration of the debt triggered the commencement of the
statute of limitations, and because the installment nature of the loan payments was
never reinstated following the acceleration, there were no “new” payments due and
thus there could be no “new” default following the dismissal without prejudice of
the initial action. The filing of the subsequent action, after expiration of the statute
of limitations, was therefore barred. We reverse, however, that portion of the order
which canceled the note and mortgage and quieted title in favor of the Association.