Nationstar Mortgage, LLC v. Brown
175 So. 3d 833
| Fla. Dist. Ct. App. | 2015Background
- Appellees defaulted on mortgage payments beginning February 2007 and made no payments thereafter.
- In April 2007 appellant’s predecessor sent a notice of intent to accelerate and filed a foreclosure; that action was dismissed without prejudice in October 2007 for lender counsel’s nonappearance at a case management conference.
- In November 2010 appellant sent a new notice of intent to accelerate based on the March 2007 breach and subsequent missed payments; appellees did not cure.
- Appellant filed a new foreclosure action in November 2012; appellees raised the five-year statute of limitations as an affirmative defense, arguing the 2007 acceleration started the limitations period.
- The trial court granted final summary judgment for appellees, holding the action time-barred; the appellate court reviewed whether earlier acceleration/filing (later dismissed without prejudice) barred subsequent foreclosure based on later defaults.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior foreclosure filing and notice of acceleration (dismissed without prejudice) starts the § 95.11(2)(c) limitations period for all future foreclosures | Appellant: dismissal without prejudice did not irrevocably exercise acceleration; later defaults create new independent rights to accelerate and sue | Appellees: original 2007 acceleration triggered the five-year statute, barring subsequent foreclosure actions | Court: Dismissal without prejudice left parties in status quo; later defaults give lender a new, independent right to accelerate; statute did not bar 2012 action |
| Whether a lender’s earlier attempt to accelerate (even if pursued in earlier suit) precludes suing on later defaults | Appellant: subsequent separate defaults revive independent acceleration rights | Appellees: earlier acceleration/filing should preclude later suits after five years | Court: Following Singleton, subsequent defaults create new actionable right regardless of earlier acceleration attempts |
| Whether contractual mortgage terms (forbearance/inaction not waiving rights) affect limitations analysis | Appellant: contract preserves lender’s rights and negates waiver argument | Appellees: argued procedural history and delay barred relief | Court: Contract terms support lender’s position and are inconsistent with dismissal-based waiver theory |
| Whether contrary district-court authority (Third DCA in Beauvais) compels a different result | Appellant: majority precedent and policy favor allowing suits on later defaults | Appellees: cite Beauvais for contrary rule | Court: Not persuaded by Beauvais; follows overwhelming authority allowing new suits on new defaults |
Key Cases Cited
- Singleton v. Greymar Associates, 882 So.2d 1004 (Fla. 2004) (subsequent separate default creates new, independent right to accelerate)
- GMAC Mortg., LLC v. Whiddon, 164 So.3d 97 (Fla. 1st DCA 2015) (dismissal of earlier foreclosure does not absolve ongoing payment obligations)
- Evergrene Partners, Inc. v. Citibank, N.A., 143 So.3d 954 (Fla. 4th DCA 2014) (acceleration on earlier default does not bar subsequent actions on later defaults)
- PNC Bank, N.A. v. Neal, 147 So.3d 32 (Fla. 1st DCA 2013) (dismissal, even with prejudice, does not bar new action based on different default)
- Olympia Mortg. Corp. v. Pugh, 774 So.2d 868 (Fla. 4th DCA 2000) (dismissal may indicate mortgagee chose not to accelerate at that time)