Desylvester v. The Bank of New York Mellon
219 So. 3d 1016
| Fla. Dist. Ct. App. | 2017Background
- Mortgage note and deed of trust dated Sept. 20, 2005 securing Sarasota County property; MERS as nominee; optional acceleration for default; reinstatement provision in mortgage.
- Original note and mortgage attached in first foreclosure; two indorsements on the note to Countrywide and then blank indorsement.
- First foreclosure action filed Nov. 15, 2012; dismissed for unspecified reasons.
- Second foreclosure action filed Dec. 9, 2014 alleging default on Oct. 1, 2008 and subsequent payments; note accelerated to full amount.
- Trial on the second action occurred Sept. 2015; bank presented original documents and payment history showing last payment Sept. 1, 2008; no later payments.
- Final judgment of foreclosure entered Oct. 26, 2015; Desylvester appeals challenging limitations, standing, and sufficiency of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations bars second foreclosure? | Desylvester argues five-year limit from Oct. 1, 2008 default; complaint filed Dec. 9, 2014 is untimely. | Bank contends Bartram permits successive defaults to reset limitations; dismissal does not bar later action. | Not barred; Bartram allows new default to restart limitations; dismissal does not trigger bar. |
| Was the Bank's standing proven at inception of the second action? | Desylvester argues lack of standing at the start. | Bank produced note, mortgage, assignment, and records showing ownership and right to foreclose. | Standing proven at inception; undisputed. |
| Was there sufficient evidence of default to support foreclosure? | Desylvester challenges evidence of October 1, 2008 default. | Bank presented payment history showing no payments after Sept. 2008 and default evidence. | Evidence sufficient to establish default. |
Key Cases Cited
- Bartram v. U.S. Bank Nat’l Ass’n, 211 So. 3d 1009 (Fla. 2016) (establishes successive-default limitations rule for subsequent foreclosures)
- Singleton v. Greymar Assocs., 882 So. 2d 1004 (Fla. 2004) (supports reinvocation of rights after dismissal in foreclosure context)
- Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 198 So. 3d 1140 (Fla. 2d DCA) (recognizes continuing default sufficiency to toll/trigger limitations)
- Hicks v. Wells Fargo Bank, N.A., 178 So. 3d 957 (Fla. 5th DCA 2015) (conflict note for certified question/holding on limitations)