[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-10113

Non-Argument Calendar

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D.C. Docket No. 8:15-cv-02954-JSM-AAS

THE BANK OF NEW YORK MELLON AS TRUSTEE FOR NATIONSTAR 

HOME EQUITY TRUST 2007-A, 

 Plaintiff-Appellee,

 versus

JANICE L. PEDERSEN, 

STEPHEN J. PEDERSEN, 

 Defendants-Appellants.

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Appeal from the United States District Court

for the Middle District of Florida

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(August 25, 2017)

Before TJOFLAT, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM: 

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Janice and Stephen Pedersen appeal pro se the district court’s grant of 

summary judgment of foreclosure and reestablishment of a lost instrument to Bank 

of New York Mellon (“BONYM”). On appeal, the Pedersens argue that the 

district court erred in granting summary judgment because BONYM was not 

entitled to enforce the instrument without the original note and because res 

judicata and the applicable statute of limitations barred suit. 

We review de novo a district court’s grant of summary judgment. Furcron 

v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016). A grant of 

summary judgment is proper “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party. Quigg 

v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016). We view the 

evidence in the light most favorable to the nonmoving party, draw all reasonable 

inferences in favor of the nonmoving party, and may not weigh conflicting 

evidence or make credibility determinations. Furcron, 843 F.3d at 1304. Pro se

pleadings are held to a less stringent standard than pleadings drafted by an attorney 

and are liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 

(11th Cir. 1998). 

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Under Florida law, a lost instrument can be enforced if the person seeking to 

enforce the instrument was entitled to enforce the instrument when the loss 

occurred or acquired ownership of the instrument from someone entitled to enforce 

it when the loss occurred, the loss was not the result of a transfer or seizure, and 

the instrument cannot reasonably be obtained. Fla. Stat. § 673.3091(1). The 

person seeking to enforce the instrument must prove the terms of the instrument 

and the right to enforce it, and then it is as if the person has produced the 

instrument. Id. § 673.3091(2). 

Whether res judicata bars a claim is a question of law that we review de 

novo. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). When 

determining whether to give a state-court judgment preclusive effect, we apply the 

res judicata law of the state whose decision could bar further litigation. Kizzire v. 

Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006). In mortgage cases, 

the Florida Supreme Court previously held that when a mortgage contains a 

reinstatement provision, the involuntary dismissal of a foreclosure action—either 

with or without prejudice—acts as a revocation of the acceleration of the mortgage 

and reinstates the borrower’s right to make payments on the note and the lender’s 

right to seek acceleration and foreclosure on subsequent defaults. Bartram v. U.S. 

Bank Nat. Ass'n, 211 So. 3d 1009, 1012 (Fla. 2016). The parties are effectively 

returned to their pre-foreclosure complaint status such that the mortgage remains 

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an installment loan, allowing the borrower to make installment payments and 

resulting in default when they do not. Id. Each new default presents a separate 

cause of action, and, thus, the denial of an action for acceleration and foreclosure 

does not trigger res judicata and bar foreclosure actions based on separate and 

distinct defaults. Id. at 1017–18. 

In diversity actions, we apply the state statutes of limitations. Cambridge 

Mut. Fire Ins. Co. v. City of Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983). 

Florida's statute of limitations for mortgages states that an action to foreclose on a 

mortgage must be commenced within five years of the date on which the cause of 

action accrues. Fla. Stat. § 95.11(2)(b)–(c), § 95.031(1). The statute of repose for 

mortgages in Florida provides that a mortgage shall terminate five years after the 

date of maturity if the date of maturity is ascertainable from the record of the 

mortgage. Fla. Stat. § 95.281. Florida courts have recognized that the statutes of 

limitations and repose can begin to run on the date that an acceleration clause is 

invoked. Smith v. F.D.I.C., 61 F.3d 1552, 1561 (11th Cir. 1995).

In an action based on diversity jurisdiction, state law determines when the 

action commenced for statute of limitations purposes. See Walker v. Armco Steel 

Corp., 446 U.S. 740, 753 (1980). The Florida Supreme Court has held that when 

dismissal of a foreclosure claim revokes acceleration, the statute of limitations on 

the mortgage ceases to run and the borrower’s right to make payments on the note 

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and the lender’s right to seek acceleration and foreclosure on subsequent defaults 

are reinstated. Bartram, 211 So. 3d at 1012. As in the Florida res judicata 

analysis for mortgages, the parties are returned to their pre-foreclosure complaint 

status such that the mortgage remains an installment loan, and each new default 

creates the right, but not the obligation, to accelerate the debt—which would start 

the statute of limitations. Id. at 1019–20. 

BONYM was entitled to enforce the mortgage against the Pedersens even 

without the original note because they made the necessary showings regarding the 

information in the original note and their right to enforce the note. See Fla. Stat. 

§ 673.3091. Res judicata did not bar BONYM’s suit because the dismissal of an 

earlier suit filed by a predecessor in interest revoked any acceleration of the debt, 

which reverted the mortgage to an installment loan and created new defaults. See 

Bartram, 211 So. 3d at 1012. Suits over new defaults are not barred by res 

judicata, and, thus, the Pedersens’ failure to make payments after acceleration was 

revoked allowed BONYM to sue under new causes of action that were not barred. 

See id. at 1017–18. Similarly, the statutes of limitations and repose did not bar suit 

because the revocation of acceleration by the previous dismissal halted the statute 

of limitations until there was another acceleration or the loan reached maturity. 

See Fla. Stat. § 95.11(2)(b)–(c), § 95.031(1), § 95.281; Smith, 61 F.3d at 1561;

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Bartram, 211 So. 3d at 1012, 1019-20. Accordingly, we affirm the district court’s 

grant of summary judgment.

AFFIRMED.

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