NINA SOLONENKO AND VALERIY SOLONENKO, APPELLANTS,
v.
GEORGIA NOTES 18, LLC, FELICE CELLINI, EDWARD B. CELLINI, LUCKY NATION, LLC, RIVIERA ISLES MASTER ASSOCIATION, INC., AMALFI HOMEOWNERS ASSOCIATION, INC., UNKNOWN SPOUSE OF FELICE CELLINI A/K/A FELICE E. CELLINI, UNKNOWN SPOUSE OF EDWARD B. CELLINI, UNKNOWN SPOUSE OF NINA SOLONENKO, UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISES, GRANTEES, OR OTHER CLAIMANTS, TENANT # 1 AND TENANT #2, TENANT #3 AND TENANT # 4, THE NAMES BEING FICTITIOUS TO ACCOUNT FOR PARTIES IN POSSESSION, APPELLEES
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The Fourth District Court of Appeal affirmed a foreclosure judgment, holding that a subsequent foreclosure action was timely filed within the five-year statute of limitations because it was based on a different event of default than a previously dismissed foreclosure action. The court certified conflict with a Third District decision on this issue.
The court held that the foreclosure action was timely filed within the five-year statute of limitations because it was based on a different event of default than the previously dismissed action. A voluntarily dismissed foreclosure action does not bar subsequent actions and acceleration based on different events of default, and any acts of default still within the statute of limitations may be raised in a subsequent suit.
[1] A five-year statute of limitations applies to actions to foreclose a mortgage.
[2] A voluntarily dismissed foreclosure action does not bar subsequent actions and acceleration based upon different events of default.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a voluntarily dismissed foreclosure action 'does not bar subsequent actions and acceleration based upon different events of default,' and 'any acts of default still within the statute of limitations may be raised in a subsequent suit.'”
Establishes the governing rule that subsequent foreclosure actions based on different defaults are not barred by prior dismissal
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Join FLexlaw to unlock all legal intelligenceAppellants borrowed money secured by a mortgage. A foreclosure action was filed in 2008 based on default, but was voluntarily dismissed. A second fore…
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ON MOTION FOR WRITTEN OPINION AND FOR CERTIFICATION
We grant appellants’ request for a written opinion, withdraw our previously-issued per curiam affirmance, and1 substitute the following'opinion in its place.
We affirm the final judgment of'foreclosure and write solely to explain our conclusion that there were no genuine issues of material fact regarding appellants’ statute of limitations defense.
An action to foreclose a mortgage has a five-year statute of limitations. § 95.11(2)(c), Fla. Stat. (2013), Appellants argue that the foreclosure action was barred by the statute of limitations because it was filed over five years after the date of default alleged in a 2008 foreclosure action that was voluntarily dismissed. However, the present action, which was brought in February 2014, was based upon a different event of default — namely, the borrowers’ failure to make the payment due on March 1, 2009. We have held that a voluntarily dismissed foreclosure action “does not bar subsequent actions and acceleration based upon different events of default,” and “any acts of default still within the statute of limitations may be raised in a subsequent suit.” See Evergrene Partners, Inc. v. Citibank, N.A., 143 So.3d 954, 955-56 (Fla. 4th DCA 2014); but see Deutsche Bank Trust Co. Americas v. Beauvais, — So.3d -, 40 Fla. L. Weekly. D1, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) (certifying conflict with Ever-grene Partners and holding that an accelerated debt was not “decelerated” by an involuntary dismissal without prejudice, the statute of limitations on the action on the accelerated debt continued to run, and there could be no “new” default upon which to base a “new” cause of action for purposes of the statute of limitations).1
Therefore, under this court’s precedent, the action was timely brought within the five-year statute of limitations. We affirm the final judgment and certify conflict with Beauvais.. However, we decline to certify an issue of great,public importance, as the certification of conflict is sufficient to allow appellants to seek the discretionary review of the Florida Supreme Court.2
Affirmed.
WARNER, TAYLOR 'and FORST, JJ., concur. . '
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Deutsche Bank Tr. Co. Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016)…missal of a foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default if the subsequent default occurred within five years of the subsequent action. See Solonenko v. Georgia Notes 18, LLC, 182 So. 3d 876, 877 (Fla. 4th DCA 2016) (“[T]he present action, which was brought in February 2014, was based upon a different event of default [than the 2008 foreclosure action] — namely the borrowers’ failure to make the payment due on March 1, 2009.... Therefor…
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Christiana Tr. for Arlp Tr. 4 v. Eliezer Taveras and Valeria Taveras, 186 So. 3d 50 (Fla. 5th DCA 2016)…could be no “new” default following the dismissal without prejudice of the initial action).1 REVERSED. LAWSON, C.J., COHEN and LAMBERT, JJ., concur. . We note that courts have declined to follow Beauvais. E.g., Solonenko v. Georgia Notes 48, LLC, 182 So. 3d 876 (Fla. 4th DCA 2016); Nationstar Mortg., LLC v. Brown, 175 So. 3d 833 (Fla. 1st DCA 2015); accord In re Gonzalez, 544 B.R. 716, (Bkrtcy.S.D.Fla.2016); In re Anthony, 534 B.R. 834, 838 (Bkrtcy. M.D.Fla.2015); Summerlin Asset Mgmt. V Trust v. Jackson,…
Authorities Cited
- U.S. Bank Nat'l Ass'n v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014)
- Evergrene P'rs, Inc. v. Citibank, N.A., 143 So. 3d 954 (Fla. 4th DCA 2014)
- Wilmington Tr. v. Alvarez, 239 So. 3d 1265 (Fla. 3d DCA 2018)