Snow v. Wells Fargo Bank, N.A.
156 So. 3d 538
| Fla. Dist. Ct. App. | 2015Background
- Snows executed a May 25, 2007 mortgage and note on Florida property; optional acceleration clause requires lender to exercise option and give notice to accelerate.
- Notice of default issued December 7, 2007 stated future acceleration if default not cured but did not declare immediate due date.
- December 7, 2007 letter identified cure amount and stated acceleration would occur only if not cured; it did not demand full immediate payment.
- Foreclosure action filed March 12, 2008 asserting default and acceleration; initial action later dismissed without prejudice.
- Second foreclosure action filed March 5, 2013; Snows argued five-year statute of limitations barred it because acceleration occurred January 10, 2008 and five years elapsed January 10, 2013.
- Trial court held acceleration occurred March 12, 2008 and second action timely; appellate review de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the statute of limitations begin for a mortgage with an optional acceleration clause? | Snows: acceleration occurred January 10, 2008. | Wells Fargo: acceleration occurred March 12, 2008. | Acceleration date is March 12, 2008 (filing of foreclosure). |
| Did the December 7, 2007 notice constitute acceleration or merely notice of default and intent to accelerate? | Snows: letter attempted to accelerate. | Wells Fargo: letter merely a future-intent notice, not acceleration. | Letter did not accelerate; acceleration occurred upon filing March 12, 2008 foreclosure complaint. |
Key Cases Cited
- Baader v. Walker, 153 So. 2d 51 (Fla. 2d DCA 1963) (absolute vs. optional acceleration distinguished)
- Campbell v. Werner, 232 So. 2d 252 (Fla. 3d DCA 1970) (filing foreclosure can operate as acceleration notice)
- Rones v. Charlisa, Inc., 948 So.2d 878 (Fla. 4th DCA 2007) (acceleration requires clear action indicating intent to accelerate)
- Central Home Trust Co. of Elizabeth v. Lippincott, 392 So.2d 931 (Fla. 5th DCA 1980) (default/notice without acceleration language not automatic acceleration)
- Greene v. Bursey, 733 So.2d 1111 (Fla. 4th DCA 1999) (affirmative action to alert debtor to acceleration required for acceleration)
- Monte v. Tipton, 612 So.2d 714 (Fla. 2d DCA 1993) (acceleration on optional clause—limitations commence on acceleration)
- Locke v. State Farm Fire and Cas. Co., 509 So.2d 1375 (Fla. 1st DCA 1987) (limitations do not run until default on final installment absent acceleration)
- Conner v. Coggins, 349 So.2d 780 (Fla. 1st DCA 1977) (mortgage default and timing of accrual with acceleration clause)
- Yelen v. Bankers Trust Co., 476 So.2d 767 (Fla. 3d DCA 1985) (tender may cure default and prevent acceleration)