NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JOHN DESYLVESTER, )

)

Appellant, )

)

v. ) Case No. 2D15-5053

)

THE BANK OF NEW YORK MELLON )

F/K/A THE BANK OF NEW YORK, AS )

TRUSTEE, ON BEHALF OF THE )

HOLDERS OF THE ALTERNATIVE )

LOAN TRUST 2005-62, MORTGAGE )

PASS-THROUGH CERTIFICATES )

SERIES 2005-62; JOY FREEMAN; )

MORTGAGE ELECTRONIC )

REGISTRATION SYSTEMS, INC., AS )

NOMINEE FOR ESECOND )

MORTGAGE.COM IN DBA DOLLAR )

REALTY MORTGAGE; HARBOUR )

WALK HOMEOWNERS' )

ASSOCIATION, INC.; THE INLETS AT )

RIVERDALE, INC.; AND TENANT, )

)

Appellees. )

)

Opinion filed February 22, 2017.

Appeal from the Circuit Court for Manatee 

County; Thomas M. Gallen, Senior Judge.

David W. Smith, Law Office of David W.

Smith, Sarasota, for Appellant. 

Sarah T. Weitz, of Weitz & Schwartz, 

P.A., Fort Lauderdale, for Appellee, The 

Bank of New York Mellon.
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No appearance by remaining Appellees.

WALLACE, Judge.

John Desylvester appeals a final judgment of mortgage foreclosure 

entered against him and Joy Freeman and in favor of The Bank of New York Mellon (the 

Bank) following a nonjury trial. Although we affirm the judgment, we write to address 

the issue of the application of the statute of limitations in a subsequent foreclosure 

action filed after the dismissal of an initial action for the foreclosure of the same note 

and mortgage.

I. THE FACTS AND THE PROCEDURAL BACKGROUND

On September 20, 2005, Mr. Desylvester and Ms. Freeman executed an 

adjustable rate note in the amount of $1,500,000 in favor of "Esecond Mortgage.com in 

[sic] DBA Dollar Realty Mtg." The terms of the note required the borrowers to make 

monthly payments of principal and interest, beginning on November 1, 2005, and 

ending on October 1, 2035.

On the same day, Mr. Desylvester and Ms. Freeman executed a standard 

residential mortgage securing the note with real property located in Sarasota County. 

The mortgage named "Esecond Mortgage.com in [sic] DBA Dollar Realty Mtg." as the 

lender and Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee 

as nominee for the lender and the lender's successors and assigns. Both the note and 

the mortgage contained optional acceleration clauses authorizing acceleration of the 

principal and interest due on the note to maturity in the event of a default by the 

borrowers. In addition, the standard form residential mortgage included a reinstatement 
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provision in paragraph 19 titled, "Borrower's Right to Reinstate After Acceleration."1 

The Bank filed the original note with the trial court in the underlying litigation. An 

allonge was attached to the note. The allonge bore two indorsements. The first 

indorsement was from the original lender to Countrywide Home Loans, Inc., dba 

America's Wholesale Lender. The second indorsement from Countrywide was in blank.

The Bank filed two foreclosure actions on the note and mortgage. It filed 

the first foreclosure action against Mr. Desylvester, Ms. Freeman, and other parties on 

November 15, 2012. The Bank attached a copy of the note, including the allonge 

bearing both of the indorsements, and a copy of the mortgage to its complaint. The 

Bank alleged that the mortgage had been assigned to it under an assignment from 

MERS dated May 10, 2011, and attached a copy of the assignment. With regard to the 

default, the Bank alleged that the borrowers had defaulted on their regular monthly 

payment due on October 1, 2008, "and all subsequent payments." The Bank also 

accelerated the note by declaring the full amount due under the note to be due and 

payable. The first action was dismissed for reasons that are unexplained in our record.

Subsequently, on December 9, 2014, the Bank filed a second foreclosure 

action against the borrowers and others on the same note and mortgage. As it did in 

the first action, the Bank alleged in its complaint that the borrowers had defaulted on the 

note and mortgage by failing to make the payment due on October 1, 2008, "and all 

 

1The reinstatement provision of the standard form residential mortgage is 

quoted in Justice Lewis's concurrence in Bartram v. U.S. Bank National Ass'n, 41 Fla. L. 

Weekly S493, S500 n.8 (Fla. Nov. 3, 2016) (Lewis, J., concurring in result only). 
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subsequent payments due thereafter." Once again, the Bank accelerated the unpaid 

principal and interest to maturity by declaring the full amount to be due and payable.

Mr. Desylvester filed an answer and affirmative defenses to the complaint 

in the second action for foreclosure. He generally denied the material allegations of the 

complaint, including the allegation that he had defaulted on the payment due on 

October 1, 2008, and "all subsequent payments due thereafter." In his second 

affirmative defense, Mr. Desylvester alleged that the statute of limitations had run with 

regard to the alleged default in payment on October 1, 2008, because any such default 

had occurred more than five years before the filing of the second foreclosure complaint. 

Mr. Desylvester asserted that "[a]ny suit to foreclose based upon an October 1, 2008 

default would have had to been filed prior to October 1, 2013, or otherwise be barred 

forever." Mr. Desylvester concluded that because the second action was filed on 

December 9, 2014, it was barred by the statute of limitations. In a third affirmative 

defense, Mr. Desylvester alleged that the Bank did not have standing to foreclose at the 

inception of the second foreclosure action.

The trial court held a bench trial for the second foreclosure action in 

September 2015. Jill Dietrich testified on behalf of the Bank. Ms. Dietrich was an 

employee of Select Portfolio Servicing, Inc. (SPS), the servicer for the loan. She was 

qualified to testify about SPS's business records for the loan. Ms. Dietrich identified the 

original note, the mortgage, and the assignment of mortgage, which the trial court 

received in evidence. Ms. Dietrich also identified a document reflecting the payment 

history on the note, which showed that the last payment received had been applied to 
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the September 1, 2008, installment; no payments had been received on the note 

thereafter. The trial court also received this document in evidence.

On October 26, 2015, the trial court entered the final judgment of 

foreclosure. Mr. Desylvester appealed the final judgment. Ms. Freeman has not joined 

in the appeal or otherwise appeared in this case.

II. MR. DESYLVESTER'S APPELLATE ARGUMENTS

On appeal, Mr. Desylvester raises three points. First, he argues that the 

Bank failed to present evidence sufficient to establish the alleged default in payment. 

Second, Mr. Desylvester contends that the Bank failed to establish its standing to 

foreclose at the inception of the second action. Third, he argues that the Bank's action 

is barred by the applicable statute of limitations.

Competent substantial evidence in the record demonstrates that the Bank 

established the alleged default in payment and its standing to foreclose at the inception 

of the action. Mr. Desylvester's arguments on these points are without merit and do not 

warrant further discussion. We turn now to a discussion of Mr. Desylvester's argument 

concerning the statute of limitations.

III. DISCUSSION

We apply a de novo standard of review to the issue of the application of 

the statute of limitations to the Bank's action for foreclosure. Nationstar Mortg., LLC v. 

Sunderman, 201 So. 3d 139, 140 (Fla. 3d DCA 2015); see also Hamilton v. Tanner, 962 

So. 2d 997, 1000 (Fla. 2d DCA 2007) ("A legal issue surrounding a statute of limitations 

question is an issue of law subject to de novo review.").
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Mr. Desylvester argues that the trial court erred in entering the final 

judgment of foreclosure in favor of the Bank because the Bank's action was barred by 

the five-year statute of limitations applicable to actions on a written instrument. See § 

95.11(2)(c), Fla. Stat. (2008). In Mr. Desylvester's view, the Bank's action was barred 

because it was filed more than five years after the date of default, i.e., October 1, 2008. 

The Bank filed the underlying second foreclosure action on December 9, 2014. Mr. 

Desylvester claims that in order for the action to be timely, the Bank had to file its 

complaint before October 1, 2013. Mr. Desylvester concludes that "a complaint is 

barred by the statute of limitations in a subsequent foreclosure if the alleged date of 

default is older than five years."

The recent decision of the Florida Supreme Court in Bartram v. U.S. Bank 

National Ass'n, 41 Fla. L. Weekly S493 (Fla. Nov. 3, 2016), resolves the question of the 

application of the statute of limitations in the residential mortgage foreclosure context at 

issue here in favor of the Bank. With regard to the application of the statute of 

limitations in a subsequent foreclosure action after an initial foreclosure action that 

sought acceleration was dismissed, the Bartram court said:

Therefore, with each subsequent default, the statute of 

limitations runs from the date of each new default providing 

the mortgagee the right, but not the obligation, to accelerate 

all sums then due under the note and mortgage.

Consistent with the reasoning of Singleton[ v. 

Greymar Associates, 882 So. 2d 1004 (Fla. 2004)], the 

statute of limitations on the balance under the note and 

mortgage would not continue to run after an involuntary 

dismissal, and thus the mortgagee would not be barred by 

the statute of limitations from filing a successive foreclosure 

action premised on a "separate and distinct" default. Rather, 

after the dismissal, the parties are simply placed back in the 

same contractual relationship as before, where the 
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residential mortgage remained an installment loan, and the 

acceleration of the residential mortgage declared in the 

unsuccessful foreclosure action is revoked.

Bartram, 41 Fla. L. Weekly at S497. This result follows regardless of whether the 

dismissal of the initial foreclosure action was entered with or without prejudice. Id. 

Accordingly, we conclude that the dismissal of the Bank's earlier foreclosure action did 

not trigger the statute of limitations to bar the Bank's subsequent foreclosure action 

based on separate defaults. See id.

We recognize that in the underlying action the Bank alleged that the 

borrowers defaulted on the note by failing to make the payment due on October 1, 

2008, "and all subsequent payments due thereafter." Granted, the October 1, 2008, 

date was the date alleged as the date of the initial default in the first foreclosure action, 

and this date was outside the period of the five-year statute of limitations. Nevertheless, 

the allegations of the complaint in the underlying action that the borrowers were in a 

continuing state of default at the time of the filing of the complaint was sufficient to 

satisfy the five-year statute of limitations. See Bollettieri Resort Villas Condo. Ass'n v. 

Bank of N.Y. Mellon, 198 So. 3d 1140, 1142 (Fla. 2d DCA), review granted, No. SC16-

1680 (Fla. Nov. 2, 2016). Thus, the facts of this case are distinguishable from the facts 

in Collazo v. HSBC Bank USA, N.A., 41 Fla. L. Weekly D2315 (Fla. 3d DCA Oct. 13, 

2016). In Collazo, unlike in this case, the plaintiff insisted on trying the case on the 

basis of a date of default that was outside the five-year statute of limitations period. Id.

at D2315. Here, in addition to alleging the initial date of default as October 1, 2008, the 

Bank alleged that the borrowers were in a continuing state of default up to the time of 

the filing of the complaint.
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IV. CONCLUSION

It follows from the foregoing analysis that the underlying action was not 

barred by the five-year statute of limitations. For this reason, and because Mr. 

Desylvester's other points are without merit, we affirm the final judgment of foreclosure.

Affirmed.

SLEET and SALARIO, JJ., Concur.