           Case: 17-10113   Date Filed: 08/25/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10113
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:15-cv-02954-JSM-AAS



THE BANK OF NEW YORK MELLON AS TRUSTEE FOR NATIONSTAR
HOME EQUITY TRUST 2007-A,

                                                              Plaintiff-Appellee,

                                 versus

JANICE L. PEDERSEN,
STEPHEN J. PEDERSEN,

                                                       Defendants-Appellants.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (August 25, 2017)

Before TJOFLAT, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Janice and Stephen Pedersen appeal pro se the district court’s grant of

summary judgment of foreclosure and reestablishment of a lost instrument to Bank

of New York Mellon (“BONYM”). On appeal, the Pedersens argue that the

district court erred in granting summary judgment because BONYM was not

entitled to enforce the instrument without the original note and because res

judicata and the applicable statute of limitations barred suit.

      We review de novo a district court’s grant of summary judgment. Furcron

v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016). A grant of

summary judgment is proper “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when the evidence is

such that a reasonable jury could return a verdict for the nonmoving party. Quigg

v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016). We view the

evidence in the light most favorable to the nonmoving party, draw all reasonable

inferences in favor of the nonmoving party, and may not weigh conflicting

evidence or make credibility determinations. Furcron, 843 F.3d at 1304. Pro se

pleadings are held to a less stringent standard than pleadings drafted by an attorney

and are liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 1263

(11th Cir. 1998).




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      Under Florida law, a lost instrument can be enforced if the person seeking to

enforce the instrument was entitled to enforce the instrument when the loss

occurred or acquired ownership of the instrument from someone entitled to enforce

it when the loss occurred, the loss was not the result of a transfer or seizure, and

the instrument cannot reasonably be obtained. Fla. Stat. § 673.3091(1). The

person seeking to enforce the instrument must prove the terms of the instrument

and the right to enforce it, and then it is as if the person has produced the

instrument. Id. § 673.3091(2).

      Whether res judicata bars a claim is a question of law that we review de

novo. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). When

determining whether to give a state-court judgment preclusive effect, we apply the

res judicata law of the state whose decision could bar further litigation. Kizzire v.

Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006). In mortgage cases,

the Florida Supreme Court previously held that when a mortgage contains a

reinstatement provision, the involuntary dismissal of a foreclosure action—either

with or without prejudice—acts as a revocation of the acceleration of the mortgage

and reinstates the borrower’s right to make payments on the note and the lender’s

right to seek acceleration and foreclosure on subsequent defaults. Bartram v. U.S.

Bank Nat. Ass'n, 211 So. 3d 1009, 1012 (Fla. 2016). The parties are effectively

returned to their pre-foreclosure complaint status such that the mortgage remains


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an installment loan, allowing the borrower to make installment payments and

resulting in default when they do not. Id. Each new default presents a separate

cause of action, and, thus, the denial of an action for acceleration and foreclosure

does not trigger res judicata and bar foreclosure actions based on separate and

distinct defaults. Id. at 1017–18.

      In diversity actions, we apply the state statutes of limitations. Cambridge

Mut. Fire Ins. Co. v. City of Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983).

Florida's statute of limitations for mortgages states that an action to foreclose on a

mortgage must be commenced within five years of the date on which the cause of

action accrues. Fla. Stat. § 95.11(2)(b)–(c), § 95.031(1). The statute of repose for

mortgages in Florida provides that a mortgage shall terminate five years after the

date of maturity if the date of maturity is ascertainable from the record of the

mortgage. Fla. Stat. § 95.281. Florida courts have recognized that the statutes of

limitations and repose can begin to run on the date that an acceleration clause is

invoked. Smith v. F.D.I.C., 61 F.3d 1552, 1561 (11th Cir. 1995).

      In an action based on diversity jurisdiction, state law determines when the

action commenced for statute of limitations purposes. See Walker v. Armco Steel

Corp., 446 U.S. 740, 753 (1980). The Florida Supreme Court has held that when

dismissal of a foreclosure claim revokes acceleration, the statute of limitations on

the mortgage ceases to run and the borrower’s right to make payments on the note


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and the lender’s right to seek acceleration and foreclosure on subsequent defaults

are reinstated. Bartram, 211 So. 3d at 1012. As in the Florida res judicata

analysis for mortgages, the parties are returned to their pre-foreclosure complaint

status such that the mortgage remains an installment loan, and each new default

creates the right, but not the obligation, to accelerate the debt—which would start

the statute of limitations. Id. at 1019–20.

      BONYM was entitled to enforce the mortgage against the Pedersens even

without the original note because they made the necessary showings regarding the

information in the original note and their right to enforce the note. See Fla. Stat.

§ 673.3091. Res judicata did not bar BONYM’s suit because the dismissal of an

earlier suit filed by a predecessor in interest revoked any acceleration of the debt,

which reverted the mortgage to an installment loan and created new defaults. See

Bartram, 211 So. 3d at 1012. Suits over new defaults are not barred by res

judicata, and, thus, the Pedersens’ failure to make payments after acceleration was

revoked allowed BONYM to sue under new causes of action that were not barred.

See id. at 1017–18. Similarly, the statutes of limitations and repose did not bar suit

because the revocation of acceleration by the previous dismissal halted the statute

of limitations until there was another acceleration or the loan reached maturity.

See Fla. Stat. § 95.11(2)(b)–(c), § 95.031(1), § 95.281; Smith, 61 F.3d at 1561;




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Bartram, 211 So. 3d at 1012, 1019-20. Accordingly, we affirm the district court’s

grant of summary judgment.

      AFFIRMED.




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