         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


NEIL VELDEN,

             Appellant,

 v.                                                    Case No. 5D16-3628

NATIONSTAR MORTGAGE, LLC,

             Appellee.

________________________________/

Opinion filed January 12, 2018

Appeal from the Circuit Court
for Orange County,
John E. Jordan, Judge.

Mark P. Stopa, of Stopa Law Firm, Tampa,
for Appellant.

Nancy M. Wallace, of Akerman LLP,
Tallahassee, William P. Heller of Akerman
LLP, Fort Lauderdale, Celia C. Falzone, of
Akerman LLP, Jacksonville and Eric M.
Levine, of Akerman LLP, West Palm Beach,
and Charles P. Gufford, of McCalla Raymer
Pierce, LLC, Orlando, for Appellee.

PALMER, J.

      Neil Velden appeals the final judgment of foreclosure entered by the trial court in

favor of Nationstar Mortgage, LLC (Nationstar). We affirm in all respects except to the

extent the final judgment includes some payments barred by the statute of limitations.
       In July 2014, Freedom Mortgage Corporation (Freedom) filed a mortgage

foreclosure complaint against Velden, alleging that Velden failed to make his February 1,

2009 mortgage payment as well as all subsequent payments. Thereafter, Nationstar was

substituted for Freedom. After trial, the court entered a final judgment of foreclosure in

favor of Nationstar, awarding the full amount of the unpaid note plus interest, dating back

to January 2009.

       Velden asserts that the trial court erred in denying his motion for the entry of an

involuntary dismissal because Freedom's complaint was filed more than five years after

the date of his first missed payment. We disagree.

       Section 95.11(2)(c) of the Florida Statutes (2014) provides that an action to

foreclose a mortgage shall be commenced within five years. In Klebanoff v. Bank of N.

Y. Mellon, 228 So. 3d 167,168-69 (Fla. 5th DCA 2017), we affirmed a final judgment of

foreclosure, rejecting the same statute of limitations argument raised here:

              Because the Bank alleged and proved missed payments
              within the five years prior to the filing of its complaint, its action
              was not barred by the statute of limitations.

See also U.S. Bank, N.A. v. Diamond, 228 So. 3d 177,178 (Fla. 5th DCA 2017).

       Velden further argues that the trial court erred in awarding Nationstar amounts

which accrued beyond the five-year limitations period. We agree.

       In U.S. Bank National Association v. Bertram, 140 So. 3d 1007 (Fla. 5th DCA

2014), affirmed, 211 So. 3d 1009 (Fla. 2016), we quoted with approval from the federal

district court case of Kaan v. Wells Fargo Bank, N.A., 981 F. Supp. 2d 1271, 1274 (S. D.

Fla. 2013):

              While any claims relating to individual defaults that are now
              more than five years old may be subject to the statute of



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LAMBERT J., concurring and concurring specially, with opinion.                  5D16-3628


       I concur with the majority opinion which affirms, in part, the final judgment of

foreclosure entered in favor of Appellee.        I also agree that the majority opinion is

consistent with the recent precedent from this court that is cited in the opinion, providing

that monies owed due to defaults that occurred more than five years prior to the filing date

of the lawsuit must be excluded from the foreclosure judgment. However, if I were writing

on a clean slate, I would not exclude these sums from the judgment and would affirm the

final judgment of foreclosure for the entire balance owed on the thirty-year note at issue.

       The first foreclosure suit on the subject note and mortgage was dismissed without

prejudice. As a result of this dismissal, the prior acceleration of the debt owed by Velden

on the note was revoked, resulting in the parties being placed back in their respective

pre-acceleration positions. See Bartram v. U.S. Bank Nat’l Ass’n, 211 So. 3d 1009, 1021

(Fla. 2016) (“[E]ven if the note had been accelerated through the Bank’s foreclosure

complaint, the dismissal of the foreclosure action had the effect of revoking the

acceleration.”). Velden, however, defaulted on subsequent monthly note payments. At

that point, Nationstar’s predecessor, Freedom, “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.” Id. That, in fact, is what happened here. However,

the majority opinion finds error in the trial court’s award of any amounts owed on the note

that accrued more than five years before the present suit was filed.

       In his recent concurring opinion in Bollettieri Resort Villas Condominium Ass’n v.

Bank of New York Mellon, 228 So. 3d 72 (Fla. 2017), Justice Lawson addressed what he

                                             4
LAMBERT J., concurring and concurring specially, with opinion.                  5D16-3628


       I concur with the majority opinion which affirms, in part, the final judgment of

foreclosure entered in favor of Appellee.        I also agree that the majority opinion is

consistent with the recent precedent from this court that is cited in the opinion, providing

that monies owed due to defaults that occurred more than five years prior to the filing date

of the lawsuit must be excluded from the foreclosure judgment. However, if I were writing

on a clean slate, I would not exclude these sums from the judgment and would affirm the

final judgment of foreclosure for the entire balance owed on the thirty-year note at issue.

       The first foreclosure suit on the subject note and mortgage was dismissed without

prejudice. As a result of this dismissal, the prior acceleration of the debt owed by Velden

on the note was revoked, resulting in the parties being placed back in their respective

pre-acceleration positions. See Bartram v. U.S. Bank Nat’l Ass’n, 211 So. 3d 1009, 1021

(Fla. 2016) (“[E]ven if the note had been accelerated through the Bank’s foreclosure

complaint, the dismissal of the foreclosure action had the effect of revoking the

acceleration.”). Velden, however, defaulted on subsequent monthly note payments. At

that point, Nationstar’s predecessor, Freedom, “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.” Id. That, in fact, is what happened here. However,

the majority opinion finds error in the trial court’s award of any amounts owed on the note

that accrued more than five years before the present suit was filed.

       In his recent concurring opinion in Bollettieri Resort Villas Condominium Ass’n v.

Bank of New York Mellon, 228 So. 3d 72 (Fla. 2017), Justice Lawson addressed what he

                                             4
perceived to be “a widespread and fundamental misunderstanding, in Florida, regarding

how the statute of limitations, § 95.11(2)(c), Fla. Stat. (2017), operates vis-à-vis a long-

term note (and mortgage).” 228 So. 3d at 73 (Lawson, J., concurring). Justice Lawson

observed that when the right to accelerate the debt for non-payment is optional with the

holder of the note, the statute of limitations does not run until the note is due, which is

thirty years after signing, unless the lender or holder accelerates and declares the full

balance due earlier. Id. at 74. Justice Lawson recognized that because the promissory

note in that case allowed the lender or holder to hold off or forbear accelerating the note

upon the borrower’s non-payment, that such forbearance would “not constitute a waiver

or defense against future collection of all sums due and owing under the note.” Id.

       Here, the note contained the same pertinent provisions. Applying Bartram and the

logic from Justice Lawson’s concurring opinion in Bollettieri1 to the present case, although

Freedom, or any successor such as Nationstar, could have waited until maturity date (i.e.

thirty years after the note was signed) to bring its action for nonpayment on the note and

to foreclose the mortgage upon Velden’s subsequent defaults, it chose not to do so.

Instead, Freedom again accelerated the debt, as it was permitted to do, and filed suit

approximately five years and six months from the first default date alleged (and proved)

in the complaint. Under Justice Lawson’s analysis, Nationstar should not be deemed to

have waived or forfeited its right to have included in the final judgment of foreclosure

those monies owed for non-payments on the note that are more than five years from the

filing of the lawsuit based on the statute of limitations defense.



       1Justice Lawson acknowledged that the views expressed in his concurring opinion
were of no precedential value, but he invited the districts courts to revisit this issue on
their own. Bollettieri, 228 So. 3d at 75.
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