# Third District Court of Appeal

State of Florida

Opinion filed January 14, 2015.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D14-1547

Lower Tribunal No. 13-8196

________________



### Richard Hubert Snow, et al.

,

Appellants,

vs.



### Wells Fargo Bank, N.A., etc.

,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marvin H.

Gillman

, Judge.

John H. Ruiz and Karen J. Barnet-Backer and Christine M. Lugo

, for

appellants.

Burr & Forman and John R. Chiles and Christine Irwin Parrish and Gennifer

L. Bridges (Orlando), for appellee.

Before SALTER, EMAS and SCALES, JJ.

EMAS, J.Richard and Nancy Snow (“the Snows”) appeal a final judgment of

foreclosure entered in favor of Wells Fargo Bank, N.A. (“Wells Fargo”). We

affirm.

FACTS

The Snows executed a note and mortgage on real property in Miami, Florida

on May 25, 2007. Pursuant to the terms of the mortgage, the lender had the option

to accelerate the debt in the event of a default by the borrower:

22. Acceleration; Remedies. Lender shall give notice to

Borrower prior to acceleration following Borrower’s

breach of any covenant or agreement in this Security

Instrument (but not prior to acceleration under Section 18

unless Applicable Law provides otherwise.) The notice

shall specify: (a) the default; (b) the action required to

cure the default; (c) a date, not less than 30 days from the

date the notice is given to Borrower, by which the default

must be cured; and (d) that failure to cure the default on

or before the date specified in the notice may result in

acceleration of the sums secured by this Security

Instrument, foreclosure by judicial proceeding and sale of

the Property. The notice shall further inform Borrower

of the right to reinstate after acceleration and the right to

assert in the foreclosure proceeding the non-existence of

a default or any other defense of Borrower to acceleration

and foreclosure. If the default is not cured on or before

the date specified in the notice, Lender at is option may

require immediate payment in full of all sums secured by

this Security Instrument without further demand and may

foreclose this Security Instrument by judicial proceeding.

Lender shall be entitled to collect all expenses incurred in

pursuing the remedies provided in this Section 22,

including, but not limited to, reasonable attorneys’ fees

and costs of title evidence.

2The Snows failed to make the required monthly payment due on October 1,

2007. On December 6, 2007, Wells Fargo sent the Snows a notice of default,

which provided in pertinent part:

You are hereby provided formal notice by the Servicer

(EMC Mortgage Corporation), as authorized by the

Creditor of the above-referenced home loan (hereinafter

referred to as “the Debt”) that you are in default under

the terms and conditions of the Note and Security

Instrument (i.e. Deed of Trust, Mortgage, etc.) for failure

to pay the required installments when due, and important

data regarding that information is found in this document.

This letter serves as further notice that EMC Mortgage

Corporation intends to enforce the provisions of the Note

and Security Instrument. You must pay the full amount

of the default on this loan by the thirty-fifth (35 th ) day

from the date of this letter which is 01/10/2008 (or if said

date falls on a Saturday, Sunday, or legal holiday, then on

the first business day thereafter). If you do not pay the

full amount of the default, we shall accelerate the entire

sum of both principal and interest due and payable, and

invoke any remedies provided for in the Note and

Security Instrument, including but not limited to the

foreclosure sale of the property.

. . .

You are hereby informed that you have the right to

“cure” or reinstate the loan after acceleration and the

right to assert in the foreclosure proceeding the

nonexistence of a default or any other defense you may

have to acceleration and sale.

As of 12/05/2007 the amount of the debt that we are

seeking to collect is $6,872.72

, which includes the sum

of payments that have come due on or after the date of

default.

. . .

3Thereafter, Wells Fargo filed a foreclosure action against the Snows on

March 12, 2008, alleging, inter alia:

There has been a default under the note and mortgage

held by Plaintiff in that the payment due October 1, 2007

and all subsequent payments have not been made.

Plaintiff declares the full amount due under the note and

mortgage to be now due.

All conditions precedent to the filing of this action have

been performed or have occurred.

On June 28, 2011, Wells Fargo voluntarily dismissed, without prejudice, the

foreclosure action against the Snows. Thereafter, on March 5, 2013, Wells Fargo

filed a second foreclosure action against the Snows. The Snows answered this

complaint and alleged as an affirmative defense that the expiration of the five-year

statute of limitations barred the second foreclosure action.

At trial, the Snows argued that the second foreclosure action was barred by

the statute of limitations because the limitations period began to run on January 10,

2008 (the date by which the Snows were required, pursuant to the notice of default

letter, to cure the default) and expired five years later (on January 10, 2013), three

months prior to the filing date of the second foreclosure action. In other words, the

Snows argued, because they failed to cure the default within the time period set

forth in the default letter, the debt was automatically accelerated on January 10,

2008.

4Wells Fargo contended that the date of acceleration was not January 10,

2008, but rather March 12, 2008, the date the complaint was filed in the first

foreclosure action. Therefore, Wells Fargo argued, the five-year limitations period 1

had not yet expired when Wells Fargo filed the second lawsuit on March 5, 2013.

The December 7, 2007 letter, it argued, was a notice of default and a notice that

Wells Fargo would take future action, including but not limited to acceleration of

the debt and the filing of a foreclosure action, if the default was not cured.

The trial court determined that the debt was accelerated on the date Wells

Fargo filed the lawsuit on March 12, 2008; that the statute of limitations

commenced on that date; and that the second foreclosure action (filed on March 5,

2013) was accomplished prior to the expiration of the five-year limitations period.

Final judgment of foreclosure was entered thereafter, and this appeal followed.

We review this statute of limitations issue de novo

. Grove Isle Ass’n, Inc. v.

Grove Isle Assocs., LLLP

, 137 So. 3d 1081 (Fla. 3d DCA 2014).

DISCUSSION

When an acceleration clause is absolute, the entire indebtedness becomes

due immediately upon default. Such an acceleration is self-executing, requiring

neither notice of default nor some further action to accelerate the debt. Baader v.

Walker

, 153 So. 2d 51 (Fla. 2d DCA 1963). By contrast, where the acceleration

1 The relevant statute of limitations is provided in section 95.11(2)(c), Florida

Statutes (2008).

5clause is optional (as it is in this case), it is not automatic or self-executing, but

requires the lender to exercise this option and to give notice to the borrower that it

has done so. See Campbell v. Werner

, 232 So. 2d 252, 254 n. 1 (Fla. 3d DCA

1970) (noting that the filing of a suit for foreclosure amounted to the exercise of

the option to accelerate and operated as notice to the mortgagor of such election);

Rones v. Charlisa, Inc.

, 948 So. 2d 878, 879 (Fla. 4th DCA 2007) (quoting Central

Home Trust Co. of Elizabeth v. Lippincott

, 392 So. 2d 931, 933 (Fla. 5th DCA

1980)) (holding acceleration option was exercised by filing of foreclosure

complaint and noting that “to constitute an acceleration after default, where the

holder has the option to accelerate, the holder or payee of the note must take some

clear and unequivocal action indicating its intent to accelerate all payments under

the note, and such action should apprise the maker of the fact that the option to

accelerate has been exercised.”); Greene v. Bursey

, 733 So. 2d 1111, 1115 (Fla.

4th DCA 1999) (noting that in an installment contract with an optional acceleration

clause, “the entire debt does not become due on the mere default of payment;

rather, it become[s] due when the creditor takes affirmative action to alert the

debtor that he has exercised his option to accelerate”).

The statute of limitations on a mortgage foreclosure action does not

commence until a default in payment of the final installment, unless the mortgage

contains an acceleration clause. Locke v. State Farm Fire and Cas. Co.

, 509 So. 2d

61375 (Fla. 1st DCA 1987); Conner v. Coggins

, 349 So. 2d 780 (Fla. 1st DCA

1977).

When the borrower defaults on a payment under a note containing an

optional acceleration clause, the lender can exercise its option to accelerate all

future payments, making the entire debt immediately due and payable. A cause of

action on an accelerated debt accrues, and the statute of limitation commences,

when the lender exercises the acceleration option and notifies the borrower of this

exercise. See Greene

, 733 So. 2d at 1115; Monte v. Tipton

, 612 So. 2d 714 (Fla.

2d DCA 1993)(holding that, in a mortgage containing an optional acceleration

clause, the cause of action for foreclosure did not accrue, and the statute of

limitations did not begin to run, until the lender exercised her option to accelerate

and demanded the total balance of principal and interest).

We hold that the December 7, 2007 letter did not constitute an acceleration

of the debt nor did it “apprise the maker of the fact that the option to accelerate has

been exercised .” Central Home Trust

, 392 So. 2d at 933 (emphasis supplied).

Rather, the December 7th letter served as a notice of default, notice of the Snows

right to cure, and notice that Wells Fargo intended, at some unspecified future date,

to accelerate the debt if the Snows failed to cure the default as set forth in the

letter. The pertinent language of the December 7th letter provided:

This letter serves as further notice that EMC Mortgage

Corporation intends to enforce the provisions of the Note

7and Security Instrument. You must pay the full amount

of the default on this loan by the thirty-fifth (35 th ) day

from the date of this letter which is 01/10/2008 (or if said

date falls on a Saturday, Sunday, or legal holiday, then on

the first business day thereafter). If you do not pay the

full amount of the default, we shall accelerate the entire

sum of both principal and interest due and payable, and

invoke any remedies provided for in the Note and

Security Instrument, including but not limited to the

foreclosure sale of the property

. . . .

(Emphasis supplied.)

Absent from the letter is any declaration by Wells Fargo that the full amount

of principal and interest is immediately due, or any demand for payment of the full

amount of principal and interest. That is because, under the terms of the mortgage,

a tender by the Snows of the default amount would cure the default and prevent

Wells Fargo from accelerating the debt. Yelen v. Bankers Trust Co.

, 476 So. 2d

767 (Fla. 3d DCA 1985). The payment demanded by the letter was merely the

specific amount necessary to bring the loan current:

As of 12/05/2007 the amount of the debt that we are

seeking to collect is $6,872.72, which includes the sum

of payments that have come due on or after the date of

default.

. . .

The Snows’ argument focuses on one portion of the letter which reads: “If

you do not pay the full amount of the default, we shall accelerate the entire sum of

both principal and interest due and payable.

. . .” (Emphasis added.) We reject the

Snows’ contention that the phrase “we shall accelerate” somehow converted the

8optional acceleration into a prospective, self-executing acceleration which was

automatically triggered upon the failure of the Snows to cure the default. The

December 7th letter did not indicate that Wells Fargo was exercising its option to

accelerate, but only that Wells Fargo intended to exercise its option to accelerate in

the future, should the Snows fail to cure the default. Therefore, the lapse of the 35-

day grace period (without a cure of the default) did not automatically accelerate the

debt or trigger the commencement of the five-year statute of limitations. Instead,

the limitations period commenced when Wells Fargo filed the March 12, 2008

foreclosure complaint, expressing in clear and unequivocal language that it was

exercising its option and accelerating the debt:

There has been a default under the note and mortgage

held by Plaintiff in that the payment due October 1, 2007

and all subsequent payments have not been made.

Plaintiff declares the full amount due under the note and

mortgage to be now due.

(Emphasis supplied.)

Thus, the statute of limitations would have expired March 12, 2013, and

because the second foreclosure action was filed March 5, 2013, it was not timebarred. 2

Affirmed.

2 We find no merit in the other issues raised in this appeal. See Deutsche Bank

Trust Co. Am. v. Beauvais

, No. 3D14-575 (Fla. 3d DCA Dec. 17, 2014).

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