SOL UPDATE – FOUR OUT OF THE FIVE FLORIDA DCA’s NOW AGREE – FORECLOSURE NOT BARRED BY STATUTE OF LIMITATIONS
The Second DCA joins the Third, Fourth and Fifth District Courts of Appeal finding that a lender is not barred from pursuing the entire unpaid debt in the event of a default. Grdic v. HSBC Bank USA, N.A. Specifically, the Court held:
“We agree with the sound rationale set forth in Grant, Gonzalez, and Graybush. Like in those cases, Mr. Grdic’s note afforded the holder the right to accelerate the entire unpaid debt in the event of a default. And, like in those cases, Mr. Grdic remained in a continued state of default from the time of his first missed monthly payment up until the date when HSBC filed the instant foreclosure action. HSBC was entitled to seek recovery of the entire amount of Mr. Grdic’s unpaid debt because, “with each subsequent default,” HSBC would have “had the right to file a subsequent foreclosure action—and to seek acceleration of all sums due under the note—so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default.” Bartram, 211 So. 3d at 1021; cf. Desylvester v. Bank of N.Y. Mellon ex rel. Holders of Alt. Loan Tr. 2005–62, Mort. Pass–Through Certificates Series 2005–62, 219 So. 3d 1016, 1020 (Fla. 2d DCA 2017)”
Following Bartram and holding 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”), the Court affirmed the foreclosure judgment.
Grdic reinforces the judicial trend regarding the SOL issue. As previously pointed out, the lack of an inter-district conflict on this issue supports all Florida trial courts being bound to follow Grdic, Grant, Gonzalez, and Graybush. The Florida Supreme Court previously established that:
“the decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court…Thus, in the absence of inter-district conflict, district court decisions bind all Florida trial courts.” Pardo v. State.
The Florida Supreme Court recognized the conflict between the districts regarding the applicability of the five-year statute of limitations was resolved in Bollettieri when it declined to review the case: “After further consideration…we have determined that the certified conflict has been resolved, and we conclude that we should exercise our discretion and decline review.” Bollettieri.