Nina Solonenko and Valeriy Solonenko v. Georgia Notes 18, LLC

District Court of Appeal of Florida

Nina Solonenko and Valeriy Solonenko v. Georgia Notes 18, LLC

182 So. 3d 876, 2016 Fla. App. LEXIS 257, 2016 WL 72580

CourtDistrict Court of Appeal of Florida

DecidedJanuary 6, 2016

Docket4D14-3001

StatusPublished

Cited by3 cases

This text of 182 So. 3d 876 (Nina Solonenko and Valeriy Solonenko v. Georgia Notes 18, LLC) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nina Solonenko and Valeriy Solonenko v. Georgia Notes 18, LLC, 182 So. 3d 876, 2016 Fla. App. LEXIS 257, 2016 WL 72580 (Fla. Ct. App. 2016).

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Opinion

ON MOTION FOR WRITTEN OPINION AND FOR CERTIFICATION

PER CURIAM.'

We grant appellants’ request for a written opinion, withdraw our previously-issued per curiam affirmance, and 1 substitute the following'opinion in its place.

We affirm the final judgment of'foreclosure and write solely to explain our conclusion that there were no genuine issues of material fact regarding appellants’ statute of limitations defense.

An action to foreclose a mortgage has a five-year statute of limitations. § 95.11(2)(c), Fla. Stat. (2013), Appellants argue that the foreclosure action was barred by the statute of limitations because it was filed over five years after the date of default alleged in a 2008 foreclosure action that was voluntarily dismissed. However, the present action, which was brought in February 2014, was based upon a different event of default — namely, the borrowers’ failure to make the payment due on March 1, 2009. We have held that a voluntarily dismissed foreclosure action “does not bar subsequent actions and acceleration based upon different events of default,” and “any acts of default still within the statute of limitations may be raised in a subsequent suit.” See Evergrene Partners, Inc. v. Citibank, N.A., 143 So.3d 954, 955-56 (Fla. 4th DCA 2014); but see Deutsche Bank Trust Co. Americas v. Beauvais, — So.3d -, 40 Fla. L. Weekly. D1, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) (certifying conflict with Ever-grene Partners and holding that an accelerated debt was not “decelerated” by an involuntary dismissal without prejudice, the statute of limitations on the action on the accelerated debt continued to run, and there could be no “new” default upon which to base a “new” cause of action for purposes of the statute of limitations). 1

Therefore, under this court’s precedent, the action was timely brought within the five-year statute of limitations. We affirm the final judgment and certify conflict with Beauvais.. However, we decline to certify an issue of great,public importance, as the certification of conflict is sufficient to allow appellants to seek the discretionary review of the Florida Supreme Court. 2

Affirmed.

WARNER, TAYLOR 'and FORST, JJ., concur. . '

1

. Beauvais has been set for rehearing en banc by the Third District.

2

, We nóte that the Fifth District has already certified a similar, but not identical, issue to *878 the Florida Supreme Court. See U.S. Bank Nat’l Ass’n v. Bartram, 140 So.3d 1007, 1014 (Fla. 5th DCA 2014), rev. granted, 160 So.3d 892 (Fla.2014). The question certified was as follows: "Does acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, trigger application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on all payment defaults occurring subsequent to dismissal of the first foreclosure suit?” Id,

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ON MOTION FOR WRITTEN OPINION AND FOR CERTIFICATION

PER CURIAM.'

We grant appellants’ request for a written opinion, withdraw our previously-issued per curiam affirmance, and 1 substitute the following'opinion in its place.

We affirm the final judgment of'foreclosure and write solely to explain our conclusion that there were no genuine issues of material fact regarding appellants’ statute of limitations defense.

An action to foreclose a mortgage has a five-year statute of limitations. § 95.11(2)(c), Fla. Stat. (2013), Appellants argue that the foreclosure action was barred by the statute of limitations because it was filed over five years after the date of default alleged in a 2008 foreclosure action that was voluntarily dismissed. However, the present action, which was brought in February 2014, was based upon a different event of default — namely, the borrowers’ failure to make the payment due on March 1, 2009. We have held that a voluntarily dismissed foreclosure action “does not bar subsequent actions and acceleration based upon different events of default,” and “any acts of default still within the statute of limitations may be raised in a subsequent suit.” See Evergrene Partners, Inc. v. Citibank, N.A., 143 So.3d 954, 955-56 (Fla. 4th DCA 2014); but see Deutsche Bank Trust Co. Americas v. Beauvais, — So.3d -, 40 Fla. L. Weekly. D1, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) (certifying conflict with Ever-grene Partners and holding that an accelerated debt was not “decelerated” by an involuntary dismissal without prejudice, the statute of limitations on the action on the accelerated debt continued to run, and there could be no “new” default upon which to base a “new” cause of action for purposes of the statute of limitations). 1

Therefore, under this court’s precedent, the action was timely brought within the five-year statute of limitations. We affirm the final judgment and certify conflict with Beauvais.. However, we decline to certify an issue of great,public importance, as the certification of conflict is sufficient to allow appellants to seek the discretionary review of the Florida Supreme Court. 2

Affirmed.

WARNER, TAYLOR 'and FORST, JJ., concur. . '

1

. Beauvais has been set for rehearing en banc by the Third District.

2

, We nóte that the Fifth District has already certified a similar, but not identical, issue to *878 the Florida Supreme Court. See U.S. Bank Nat’l Ass’n v. Bartram, 140 So.3d 1007, 1014 (Fla. 5th DCA 2014), rev. granted, 160 So.3d 892 (Fla.2014). The question certified was as follows: "Does acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, trigger application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on all payment defaults occurring subsequent to dismissal of the first foreclosure suit?” Id,

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182 So. 3d 876, 2016 Fla. App. LEXIS 257, 2016 WL 72580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nina-solonenko-and-valeriy-solonenko-v-georgia-notes-18-llc-fladistctapp-2016.

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