# Third District Court of Appeal

State of Florida

Opinion filed July 25, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D17-1402

Lower Tribunal No. 15-13323

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### U.S. Bank, N.A.

, as Trustee, etc.,

Appellant,

vs.



### Juan Ramirez,

Appellee.

An appeal from the Circuit Court for Miami-Dade County, Rodney Smith

, Judge.

Pearson Bitman LLP, and Allison Morat (Maitland), for appellant.

Mandel Law Group, P.A., and Roberta G. Mandel, for appellee.

Before SUAREZ, SALTER, and SCALES, JJ.

SUAREZ, J.

In this foreclosure action, the mortgagee, U.S. Bank, N.A., appeals from the

order granting the mortgagor’s, Juan Ramirez, Motion to Dismiss for failure toabide by the applicable statute of limitations. We reverse in accordance with this

Court’s decision in Deutsche Bank Trust Co. Americas v. Beauvais

, 188 So. 3d

938 (Fla. 3d DCA 2016) (en banc) and the Florida Supreme Court’s decision in

Bartram v. U.S. Bank National Association

, 211 So. 3d 1009 (Fla. 2016).

Ramirez negotiated a mortgage agreement with US Bank and agreed to

make monthly payments on the first day of each month beginning on December 1,

2005. On April 21, 2008, US Bank filed a Mortgage Foreclosure Complaint against

Ramirez, alleging that Ramirez failed to make all payments due from January 1,

2008. This initial action was involuntarily dismissed without prejudice by the trial

court due to a lack of prosecution.

Subsequently, on June 12, 2015, US Bank filed a new Verified Complaint to

Foreclose Mortgage, alleging that Ramirez had failed to make the August 1, 2010

payment and all subsequent payments thereafter. In response, Ramirez filed a

Motion to Dismiss claiming that US Bank failed to abide by the applicable statute

of limitations. Ramirez argued that US Bank had five years to bring this action for

foreclosure from the date of the original acceleration in the April 21, 2008 action.

Based on this argument, the trial court granted Ramirez’s Motion to Dismiss, but

provided US Bank thirty days to bring any information to dispute the statute of

limitations issue.

2Instead, US Bank filed a Motion for Reconsideration, or in the Alternative,

Motion for Rehearing, which was later amended by US Bank. However, the trial

court entered an order denying this motion. Finally, the trial court entered a Final

Order of Dismissal on July 12, 2017 upon Ramirez’s Motion for Entry of Final

Order of Dismissal.

We disagree with the trial court’s decision to grant Ramirez’s Motion to

Dismiss on the basis that the second foreclosure action was barred by the five-year

statute of limitations stemming from the prior acceleration. Because US Bank’s

complaint specifically alleged that Ramirez missed the August 1, 2010 payment

and “all subsequent payments,” and the action was filed within five years of the

alleged defaults, the statute of limitations did not extinguish US Bank’s claim in

this action. See Beauvais

, 188 So. 3d at 944

– 45; Bartram

, 211 So. 3d at 1019.

[W]ith 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

. . . . [T]he 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 residential mortgage remained an installment loan,

and the acceleration of the residential mortgage declared in the

unsuccessful foreclosure action is revoked

.

Bartram at 1019 (emphasis added); see also Nationstar Mortg., LLC v. Silva

, 239

So. 3d 782 (Fla. 3d DCA 2018).

3When a mortgage foreclosure action is involuntarily dismissed, either with

or without prejudice, the effect of the involuntary dismissal is revocation of the

acceleration, which then reinstates the mortgagor’s right to continue to make

payments on the note and the mortgagee’s right to seek acceleration and

foreclosure based on any subsequent defaults. Bartram

, 211 So. 3d at 1012. Thus,

the statute of limitations does not continue to run on the amount due under the

mortgage. Id.

Accordingly, we reverse the order granting Ramirez’s Motion to Dismiss

and remand with instructions to reinstate the Bank’s complaint in foreclosure.

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