Deutsche Bank vs Beauvais | FL 3rdDCA - Because the Current Action was based upon the very same accelerated debt as the Initial Action, and because that Current Action was filed after the expiration of the five-year statute of limitations, it was barred

December 18, 2014 in STOP FORECLOSURE FRAUD

Third District Court of Appeal State of Florida

Opinion filed December 17, 2014. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D14-575 Lower Tribunal No. 12-49315 ________________ Deutsche Bank Trust Company Americas, etc., Appellant, vs. Harry Beauvais, et al., Appellees. An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge. K & L Gates LLP, William P. McCaughan, Steven R. Weinstein and Stephanie N. Moot, for appellant. Sigfried, Rivera, Hyman, De La Torre, Mass & Sobel, Steven M. Siegfried and Nicholas Sigfried; The Wallen Law Firm and Todd L. Wallen, for appellees. Before SHEPHERD, C.J., and EMAS and SCALES, JJ. EMAS, J. I. INTRODUCTION Deutsche Bank Trust Company Americas, as Indenture Trustee for American Home Mortgage Investment Trust 2006-2 (“Deutsche Bank”), appeals from the trial court’s order of final summary judgment in favor of Aqua Master Association, Inc. (“the Association”). Deutsche Bank asserts the trial court erred in concluding that the expiration of the statute of limitations barred the cause of action and rendered the lien of mortgage on the property null and void. The following issue is squarely raised in this case:

Where a lender files a foreclosure action upon a borrower’s default, and expressly exercises its contractual right to accelerate all payments, does an involuntary dismissal of that action without prejudice in and of itself negate, invalidate or otherwise “decelerate” the lender’s acceleration of the payments, thereby permitting a new cause of action to be filed based upon a new and subsequent default?

We answer that question in the negative, and hold that the involuntary dismissal without prejudice of the foreclosure action did not by itself negate, invalidate or otherwise decelerate the lender’s acceleration of the debt in the initial action. The lender’s acceleration of the debt triggered the commencement of the statute of limitations, and because the installment nature of the loan payments was never reinstated following the acceleration, there were no “new” payments due and thus there could be no “new” default following the dismissal without prejudice of the initial action. The filing of the subsequent action, after expiration of the statute of limitations, was therefore barred. We reverse, however, that portion of the order which canceled the note and mortgage and quieted title in favor of the Association. [...]