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DOHA previous mortgage holder filed a suit against the borrowers on December 5, 2007, alleging that the borrowers had defaulted on their mortgage on January 1, 2007 and electing to accelerate payment of the balance. The complaint specifically declared the full amount payable under the note and mortgage to be due. However, the action was dismissed without prejudice for lack of prosecution in 2009. On June 19, 2013, the assignee of the mortgage and note, filed a new suit to foreclose the mortgage.

The court ruled that the filing of the prior lawsuit in 2007 triggered the running of the statute of limitations with respect to the entire balance of the mortgage and note. See Central Home Trust Co. v. Lippincott, 392 So. 2d 931 (Fla. 5th DCA 1980) (“Examples of acceleration are a creditor’s sending written notice to the debtor, making an oral demand, and alleging acceleration in a pleading filed in a suit on the debt.”) (emphasis added); Locke v. State Farm Fire and Casualty Co., 509 So. 2d 1375 (Fla. 1st DCA 1987) (holding that the mortgagee had not enforced the optional acceleration clause in the mortgage until it filed its foreclosure complaint); Jaidon v. Equitable Life Assurance Soc’y, 136 So. 517 (Fla. 1931) (“[T]he mere filing of suit to enforce the mortgage by foreclosure may sufficiently show his election to exercise his option to accelerate.”). Furthermore, the dismissal without prejudice of the prior lawsuit did not toll the limitations period. See Barrentine v. Vulcan Materials Co., 216 So. 2d 59 (Fla. 1st DCA 1968); see also Hamilton v. Largo Paint and Decorating, Inc., 335 So. 2d 623 (Fla. 2d DCA 1976) (“It appears settled in Florida that when an action is dismissed for lack of prosecution the time during which it is pending does not toll a statute of limitations and cannot be deducted from the total elapsed time in computing such statute.”). Because the prior mortgagee exercised its right to accelerate the entire balance due under the note and mortgage when it filed its complaint on December 5, 2007, the five-year statute of limitations period began to run on that date and subsequently lapsed on December 5, 2012.

The prior acceleration of the mortgage by the predecessor in interest is operative against an assignee. See, e.g., Spencer v. EMC Mortg. Corp., 97 So. 3d 257 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D2068a]; Cadle Co. v. Rhoades, 978 So. 2d 833 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D871a]. Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004) [29 Fla. L. Weekly S481a], is inapposite and concerns only the application of res judicata in an action to collect discrete payments under an installment contract. Singleton is not only distinguishable from the facts of the instant case, it is wholly irrelevant to the issue of the statute of limitations raised by the borrowers.

BANK OF AMERICA, N.A., v. LYNN, Circuit Court, 14th Judicial Circuit in and for Bay County. October 9, 2013. 21 Fla. L. Weekly Supp. 911a

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