       Third District Court of Appeal
                                State of Florida

                          Opinion filed October 13, 2016.
          Not final until disposition of timely filed motion for rehearing.



                                No. 3D14-2208
                           Lower Tribunal No. 14-2149



             Jorge Pablo Collazo and Maria Edith Collazo,
                                    Appellants,

                                        vs.

                           HSBC Bank USA, N.A.,
                                     Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Eugene J. Fierro,
Senior Judge.

      Hector A. Pena, for appellants.

      Albertelli Law and Matthew L. Schulis (Tampa), for appellee.


Before SHEPHERD, SALTER and EMAS, JJ.

      SALTER, J.

                                On Motion for Rehearing

      Upon consideration of the appellants’ motion for rehearing, we withdraw our
opinion issued April 13, 2016, in this appeal, and substitute the following opinion in

its place.1

        Jorge and Maria Collazo appeal a final judgment of foreclosure entered on a

defaulted residential mortgage. The appellee and mortgagee, HSBC Bank USA,

N.A. (“HSBC”),2 commenced the lawsuit below in January 2014, over five years

after (a) the alleged payment default, (b) acceleration of the entire indebtedness in a

notice sent to the Collazos in 2008, and (c) the commencement of a previous

foreclosure suit in 2008, dismissed without prejudice in 2011 following HSBC’s

failure to comply with a court order. The Collazos maintain that the final judgment

of foreclosure must be reversed because of the expiration of the five-year statute of

limitations3 applicable to the mortgage note.

        This Court’s decision issued on rehearing en banc in the case of Deutsche

Bank Trust Co. Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016), holds

that the five-year statute does not bar a second foreclosure suit filed on a subsequent

payment default occurring within the five-year statutory period preceding the

1 In the same motion, the appellees also moved for certification of conflict to the
Supreme Court of Florida; that aspect of the motion is denied.
2  HSBC did not respond to an order directing it to file an answer brief, nor has it
filed a memorandum of points and authorities in support of its position. Although
counsel has since appeared on its behalf, HSBC has not filed a response to the
Collazos’ motion for rehearing and for certification.
3   § 95.11(2)(c), Fla. Stat. (2014).

                                          2
commencement of the second suit.         The Fifth District has reached a similar

conclusion in the case of U.S. Bank National Association v. Bartram, 140 So. 3d

1007, 1014 (Fla. 5th DCA), review granted, 160 So. 3d 892 (Fla. 2014)

(“Therefore, we conclude that a foreclosure action for default in payments

occurring after the order of dismissal in the first foreclosure action is not barred by

the statute of limitations found in section 95.11(2)(c), Florida Statutes, provided the

subsequent foreclosure action on the subsequent defaults is brought within the

limitations period.”).

      The record in the present case discloses that HSBC asserted the same

payment default date and basis for acceleration in both the 2008 and 2014

complaints, a date over five years preceding the commencement of the 2014 case in

the circuit court. As a result, we reverse the final judgment of foreclosure and

remand the case for dismissal without prejudice in accordance with this Court’s

recent opinion on rehearing en banc in Beauvais.4

      Reversed and remanded with instructions.




4 Our Beauvais decision and the case at hand may also be affected by the Florida
Supreme Court’s determination of the limitations issues in the pending Bartram
case.

                                          3
                               Jorge Pablo Collazo, et al. v. HSBC Bank USA, NA
                                                               Case No. 3D14-2208

      SHEPHERD, J., concurring

      I concur in the reversal of the final judgment of foreclosure in this case. I

write only to dispel any confusion concerning whether this is a pipeline case under

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

review granted, 160 S0. Ed 892 (Fla. 2014), or Deutsche Bank Trust Company v.

Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016) (pending review, Case

No. SC 16-732).     The issue in those cases was whether an adjudication denying

acceleration and foreclosure in one circumstance bars a subsequent action to

foreclose the same mortgage. Both cases hold that a subsequent foreclosure action

is not barred so long as the second action is brought on a subsequent default within

the five-year limitation period for bringing the action under section 95.11(2)(c) of

the Florida Statutes. Beauvais at 953; Bartram at 1014. The actions before their

respective courts in Bartram and Beauvais were both based upon a subsequent

default occurring within the five-year statutory period. Beauvais at 940; Bartram

at 1009.

      In contrast to these two cases, the foreclosure action in the case before us

was commenced on January 24, 2014, based on a default in payment alleged to

have occurred on April 1, 2008. Counsel for HSBC insisted on trying the case on

the basis of that default. After hearing the evidence, the trial court entered final
                                         4
judgment and calculated all amounts due and payable based upon that default date

over borrowers’ objections and involuntary dismissal motions. In short, unlike

counsel for the lenders in both the Bartram and Beauvais cases, who circumvented

the statute of limitations in those cases by alleging a default within the five-year

limitation period, counsel for HSBC, when challenged, doubled down on a stale

default outside the limitation period. That fact distinguishes the case before us

from both Bartram and Beauvais.

      It is possible – it is always possible – that a decision in a case pending in our

High Court may have some effect on a decision of this court that is not yet final.

That is at least theoretically possible in the case before us. However, the validity

of our decision in this case is not directly dependent upon the outcome of Bartram

or Beauvais in the Florida Supreme Court.




                                          5
