DEUTSCHE BANK TRUST COMPANY AMERICAS, ETC. V. BEAUVAIS, ET AL. | Motion on Rehearing - "I would affirm that part of the trial court’s final judgment holding that the statute of limitations precludes Deutsche Bank’s foreclosure action."

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DEUTSCHE BANK V. BEAUVAIS, ET AL. | Motion on Rehearing – (dissenting) “I would affirm that part of the trial court’s final judgment holding that the statute of limitations precludes Deutsche Bank’s foreclosure action.”

DEUTSCHE BANK  V. BEAUVAIS, ET AL. | Motion on Rehearing – (dissenting) “I would affirm that part of the trial court’s final judgment holding that the statute of limitations precludes Deutsche Bank’s foreclosure action.”

🙁 66 pages below…

Third District Court of Appeal
State of Florida

Opinion filed April 13, 2016.
________________
No. 3D14-575
Lower Tribunal No. 12-49315
________________
Deutsche Bank Trust Company Americas, as Indenture Trustee for
American Home Mortgage Investment Trust 2006-2,
Appellant,

vs.

Harry Beauvais, and Aqua Master Association, Inc., a non-profit
Florida corporation,
Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez,
Judge.

K&L Gates, and David R. Fine (Harrisburg, PA) and William P.
McCaughan, Steven R. Weinstein and Stephanie N. Moot, for appellant.
Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel and Steven
M. Siegfried and Nicholas D. Siegfried; Wallen Hernandez Lee Martinez, and
Todd L. Wallen, for appellee, Aqua Master Association, Inc.
Ausley McMullen and Major B. Harding; Hargrove Law Group and John R.
Hargrove, for Baywinds Community Association, Inc., as amicus curiae.
Levine Kellogg Lehman Schneider + Grossman, and Stephanie Reed
Traband and Victor Petrescu, for the Federal National Mortgage Association and
the Federal Home Loan Mortgage Corporation, as amici curiae.
Morgan, Lewis & Bockius, and Robert M. Brochin, Joshua C. Prever and
Christopher K. Smith, for Mortgage Bankers Association of South Florida, as
amicus curiae.
Matthew Estevez, for Community Associations Institute, as amicus
curiae.
Jacksonville Area Legal Aid and Lynn Drysdale, for the National
Association of Consumer Advocates, the National Consumer Law Center and the
Jerome N. Frank Legal Services Organization at the Yale Law School, as amici
curiae.
Gilbert Garcia Group, Michelle G. Gilbert, Jennifer Lima-Smith and
Nicholas R. Cavallaro; Gladstone Law Group, Andrea R. Tromberg and Jason F.
Joseph; Robertson, Anschutz & Schneid, Robert R. Edwards and Jessica P.
Quiggle; Kass Shuler, Melissa A. Giasi and Richard S. McIver; Elizabeth R.
Wellborn; Brock and Scott, Shaib Y. Rios and Curtis J. Herbert, for the American
Legal and Financial Network, as amicus curiae.
McGlinchey Stafford, and Manuel Farach, for the Business Law Section
of the Florida Bar, as amicus curiae.
Goldman Felcoski & Stone, and Robert W. Goldman; Gunster, and
Kenneth B. Bell and John W. Little, III, for the Real Property Probate & Trust Law
Section of The Florida Bar, as amicus curiae.
Crabtree & Auslander, and John G. Crabtree, Charles Auslander, George
R. Baise, Jr., and Brian C. Tackenberg; Alice Vickers and Bryant H. Dunivan, Jr.,
for Florida Alliance for Consumer Protection, as amicus curiae.
Before SUAREZ, C.J., and WELLS, SHEPHERD, ROTHENBERG, LAGOA,
SALTER, EMAS, FERNANDEZ, LOGUE and SCALES, JJ.
ON MOTION FOR REHEARING EN BANC OR, IN THE
ALTERNATIVE, MOTION FOR CERTIFICATION

 

SCALES, J. (dissenting)

<…>

If it had been the intent of the legislature to render acceleration meaningless,
so that the statute of limitations and the statute of repose for foreclosure actions
were identical, the statute of repose would have been unnecessary. In other words,
by allowing the lender’s acceleration and potential re-accelerations to keep
delaying the operation of the statute of limitations, the majority establishes the
note’s maturity date as the only date that can trigger application of the five-year
statute of limitations. The statute of limitations and the statute of repose, absurdly,
would shake hands on March 1, 2041.

V. Conclusion
I am not unmindful of the moral imperative driving both the majority’s
opinion and a host of other State appellate court and federal decisions: borrowers
should pay their mortgage obligations. The expiration of a statute of limitations,
however, generally results in a windfall for the escaping defendant. In my view,
neither the moral imperative that borrowers pay their obligations, nor Singleton,
has abrogated decades of Florida jurisprudence governing the statute of limitations
in foreclosure cases. I would affirm that part of the trial court’s final judgment
holding that the statute of limitations precludes Deutsche Bank’s foreclosure
action.

SHEPHERD, SALTER and EMAS, JJ., concur.

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