Arnoux v. Bank of New York

193 So. 3d 82, 2016 Fla. App. LEXIS 7141, 2016 WL 2744460

• Court: District Court of Appeal of Florida
• Decided: May 11, 2016
• Docket: 3D14-1407
• Status: Published

Opinion

SCALES, J.

Carl Arnoux, the plaintiff below, appeals an order of the Miami-Dade Circuit Court dismissing, with prejudice, Arnoux’s declaratory judgment and quiet title action, which Arnoux brought against his mortgage lender, Bank of New York (the “Bank”), among others. Based on this Court’s recent en banc decision in the-case of Deutsche Bank Trust Co. Americas v. Beauvais, we affirm.

I. Facts

On March 31, 2006, Arnoux obtained a mortgage from a predecessor of the Bank. The mortgage, encumbering a Miami residential property, secured a promissory note in the principal amount of $354,445 (the “Mortgage”). The note required Ar-noux to make monthly installment payments until the maturity date of April 1, 2036. Arnoux failed to make the installment payment that was due on April 1, 2007, placing the Mortgage and underlying promissory note into default.

The Bank filed its first foreclosure action in circuit court on September 4, 2007. The Bank alleged payment defaults from April 2007 through September 2007. The Bank’s complaint in this 2007 action reflects that, pursuant to the note’s acceleration provision, the Bank accelerated Ar-noux’s indebtedness.

On the Bank’s own motion, the trial court, on April 12, 2012, dismissed the Bank’s 2007 foreclosure action without prejudice.

Then, on November 14, 2012, Arnoux. filed a complaint seeking both to obtain declaratory relief and to quiet title to real property. In his lawsuit against the Bank, Arnoux alleged that the Bank, in its 2007 foreclosure suit, had exercised its contractual light to accelerate the amounts due under the note and Mortgage; therefore, as Arnoux further alleged, the running of the five-year statute of limitations barred the Bank’s enforcement of the note and Mortgage. 1

The trial court granted the Bank’s motion to dismiss Arnoux’s complaint, allowing Arnoux leave to file an amended complaint. Arnoux amended his complaint, 2 which was met again by the Bank’s motion to dismiss for failure to state a cause of action. On May, 14, 2014, the trial court dismissed Arnoux’s amended complaint with prejudice. This .appeal ensued.

II. Analysis

We review a trial court’s dismissal' of a complaint for failure to state a cause of action under a de novo standard. Wallace v. Dean, 3 So.3d 1035,1045 (Fla.2009).

Our décisión is governed by this Court’s recent en banc decision -in Deutsche Bank Trust Company Americas v. Beauvais, 188 So.3d 938 (Fla, 3d DCA 2016).

. In the Beauvais case, this Court held that the five-year statute of limitations in foreclosure actions does not bar a second foreclosure lawsuit filed on a subsequent payment default if that subsequent default occurred within the five-year period preceding the commencement of the second foreclosure lawsuit.

Arnoux’s action "against the Bank' was founded exclusively upon Arnoux’s assertion that the Bank was precluded from enforcing the note and Mortgage because of the running of Florida’s statute of limitations. Our decision in Beauvais disposes of this assertion. Therefore, we affirm the dismissal of Arnoux’s lawsuit.

Affirmed.

1 . We note that, on February 28, 2013, the Bank filed another foreclosure action. In this second foreclosure action, the Bank alleged payment defaults from February 2008 through February 2013.

2 . The amended complaint alleges, with greater specificity .than what was set forth in the initial complaint: (i) the Bank's September 1, 2007 acceleration of Arnoux's full debt; and (ii) the Bank’s se'cond foreclosure action of February 28, 2013, which was filed more than five years after Arnoux’s initial default.