         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4265
                  _____________________________

CONNIE L. MIELKE and BLAIR C.
MIELKE,

    Appellants,

    v.

DEUTSCHE BANK NATIONAL
TRUST COMPANY, as Trustee for
GSAA Home Equity Trust 2005-
MTR1, Asset-Backed
Certificates, Series 2005-MTR1,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Okaloosa County.
Terrance R. Ketchel, Judge.

                        January 10, 2019

WINOKUR, J.

     Connie and Blair Mielke appeal the trial court’s Final
Judgment of Foreclosure in favor of Deutsche Bank National
Trust Company (Deutsche Bank). The Mielkes argue that the
complaint was time-barred because the statute of limitations had
run on the bank’s ability to enforce a lost note. Because we find
that the requirements for enforcing a lost note pursuant to
section 673.3091, Florida Statutes, do not create an independent
cause of action triggering a separate statute of limitations on a
mortgagee’s right to foreclose, we affirm.
                                 I.

    In 2005, the Mielkes executed a mortgage on a condominium
in Destin. In May 2008, Deutsche Bank filed a foreclosure
complaint against the Mielkes alleging they defaulted on their
February 2008 mortgage payment and all subsequent payments.
The complaint also contained a count to reestablish the lost
promissory note. In 2010, the trial court dismissed the complaint
without prejudice. As a result, the trial court never determined
whether Deutsche Bank was permitted to enforce the lost note.

     In 2016, Deutsche Bank filed a two-count complaint against
the Mielkes. The first count was entitled “Foreclosure of
Mortgage” and alleged that the Mielkes defaulted on their March
2011 mortgage payment and all subsequent payments. The
foreclosure count stated that Deutsche Bank was not in
possession of the promissory note, but that it was entitled to
enforce it. The second count was entitled “Reestablishment of
Lost Promissory Note.” Deutsche Bank attached an affidavit to
the complaint attesting that the promissory note had been lost,
but asserting that the note had not been transferred to another
party or cancelled.

      In their answer, the Mielkes alleged that Deutsche Bank was
barred by the statute of limitations on its count to reestablish the
lost note. The Mielkes later moved for summary judgment,
arguing that Deutsche Bank was aware of the lost promissory
note during its previous 2008 complaint. Consequently, the
Mielkes claimed that the current complaint was time-barred
pursuant to section 95.11(2)(b), Florida Statutes. Deutsche Bank
responded that its count to reestablish the lost note was ancillary
to its mortgage foreclosure count.

     The trial court denied summary judgment, finding that
section 673.3091, Florida Statutes, “clearly contemplates that an
action to re-establish a lost note is filed in connection with an
action to enforce the [n]ote.” Accordingly, the trial court held that
an “action under section 673.3091 is connected to an action for
Mortgage Foreclosure, and not a standalone cause of action.”

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     The Mielkes reasserted their statute of limitations defense at
trial. The trial court issued a Final Judgment of Foreclosure in
Deutsche Bank’s favor. The Final Judgment also denied the
Mielkes’ Motion for Involuntary Dismissal and adopted the
reasoning of its order denying the summary judgment motion.

                                II.

     Review of statute of limitation issues relating to mortgage
foreclosures is de novo. Virginia Ins. Reciprocal v. Walker, 765 So.
2d 229, 231 (Fla. 1st DCA 2000), approved, 842 So. 2d 804 (Fla.
2003).

     A plaintiff has five years to bring a mortgage foreclosure
action once a borrower has defaulted. § 95.11(2)(c), Fla. Stat.
Florida courts have consistently held that a foreclosure action is
not time-barred where the plaintiff alleges and proves the
existence of a continual default. Bartram v. U.S. Bank Nat’l
Ass’n, 211 So. 3d 1009, 1019 (Fla. 2016); Forero v. Green Tree
Servicing, LLC, 223 So. 3d 440, 445 (Fla. 1st DCA 2017). As a
result, “with each subsequent default, the statute of limitations
runs from the date of each new default providing the mortgagee
the right, but not the obligation, to accelerate all sums then due
under the note and mortgage.” 1 Bartram, 211 So. 3d at 1019.

     In this case, the Mielkes do not dispute Deutsche Bank’s
ability to foreclose on their property after their subsequent
default, but argue instead that the bank lacks standing because



    1  The Florida Supreme Court’s reasoning in Bartram was
predicated on the “recognition of the unique nature of the
mortgage obligation and the continuing obligations of the parties
in that relationship [and that] [i]f res judicata prevented a
mortgagee from acting on a subsequent default even after an
earlier claimed default could not be established, the mortgagor
would have no incentive to make future timely payments on the
note.” Singleton v. Greymar Assocs., 882 So. 2d 1004, 1007 (Fla.
2004).

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its related action to reestablish the lost promissory note is time-
barred. This issue has not been addressed by Florida courts. 2

     The Mielkes’ argument hinges on their assertion that an
action for reestablishing a lost note accrues when the party
becomes aware of the note’s loss or destruction. Thus, the issue
for this Court is whether the ability to enforce a lost note accrues
when the plaintiff discovers that the note is lost.

                                III.

     A statute of limitations “set[s] a time limit within which an
action must be filed as measured from the accrual of that cause of
action, after which time obtaining relief is barred.” Hess v. Philip
Morris USA, Inc., 175 So. 3d 687, 695 (Fla. 2015) (quoting Merkle
v. Robinson, 737 So. 2d 540, 542, n.6 (Fla. 1991)). Accordingly,
“[a] cause of action accrues when the last element constituting
the cause of action occurs.” § 95.031(1), Fla. Stat.

    The Mielkes contend that the last element in seeking the
enforcement of a lost note pursuant to section 673.3091 is the


    2  The Second District alluded to this issue in Peters v. Bank
of New York Mellon, 227 So. 3d 175, 177 (Fla. 2d DCA 2017). In
Peters, one of the issues raised by the appellants was “that the
Bank’s claim to reestablish the lost note is barred by the
applicable statute of limitations.” Id. at 178. The Second District
reversed the trial court finding that the Bank “failed to establish
its ownership of the lost note.” Id. at 180. As a result, the court
did not address the statute of limitations issue, but it cited the
trial court’s reasoning for rejecting the argument:

         [T]he loss or discovery of the lost instrument is not
    a claim. It’s an event. It’s nothing that gives rise to a
    claim that would give rise to [a] cause of action. The only
    time that there’s going to be a claim resulting from a lost
    instrument is when it needs to be enforced and that is
    when it goes into default.

Id. at 177 (emphasis added).

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plaintiff’s awareness that the note is lost. We reject this
interpretation. Section 673.3091 provides as follows:

         (1) A person not in possession of an instrument is
    entitled to enforce the instrument if:
         (a) The person seeking to enforce the instrument was
    entitled to enforce the instrument when loss of
    possession occurred, or has directly or indirectly
    acquired ownership of the instrument from a person who
    was entitled to enforce the instrument when loss of
    possession occurred;
         (b) The loss of possession was not the result of a
    transfer by the person or a lawful seizure; and
         (c) The person cannot reasonably obtain possession
    of the instrument because the instrument was
    destroyed, its whereabouts cannot be determined, or it is
    in the wrongful possession of an unknown person or a
    person that cannot be found or is not amenable to
    service of process.
         (2) A person seeking enforcement of an instrument
    under subsection (1) must prove the terms of the
    instrument and the person’s right to enforce the
    instrument.

(emphasis added).

     The language of section 673.3091 demonstrates that it is not
intended to create a cause of action to reestablish a lost note.
Rather, it only recognizes that an entity not possessing an
instrument is still entitled to enforce it if the entity meets certain
conditions. The cause of action is the enforcement itself; section
673.3091 only sets forth special requirements if the plaintiff does
not possess the instrument.

     This interpretation is bolstered by the language of section
673.3011, Florida Statutes. The statute defines a person entitled
to enforce an instrument to include “[a] person not in possession
of the instrument who is entitled to enforce the instrument
pursuant to s. 673.3091 . . . .” § 673.3011(3), Fla. Stat.
Accordingly, sections 673.3011 and 673.3091 make clear that the
right to enforce a lost note, in the foreclosure context, travels

                                  5
with the breach that triggers the need to seek enforcement—
default by a mortgagor. As a result, section 673.3091 does not
create a standalone cause of action apart from a breach.

     The Mielkes’ argument conflates the requirements of section
673.3091 with the right to reestablish a lost document under
section 71.011, Florida Statutes. Unlike section 673.3091, section
71.011 does create a standalone cause of action:

          A person desiring to establish any paper, record or
    file, except when otherwise provided, shall file a
    complaint in chancery setting forth that the paper,
    record or file has been lost or destroyed and is not in the
    custody or control of the petitioner, the time and manner
    of loss or destruction, that a copy attached is a
    substantial copy of that lost or destroyed, that the
    persons named in the complaint are the only persons
    known to plaintiff who are interested for or against such
    reestablishment.

§ 71.011(5), Fla. Stat. This statute does not merely acknowledge
that a person who does not possess a document may enforce it
and describe the conditions for such enforcement; it actually sets
out a procedure for an entity to reestablish a lost document,
starting with the filing of a complaint demonstrating an
entitlement to it.

     Deutsche Bank did not rely on section 71.011 in its
foreclosure complaint. The complaint simply exercised Deutsche
Bank’s right to enforce its promissory note due to the Mielkes’
default. Pursuant to section 673.3011, Deutsche Bank had to
demonstrate that it was the proper holder of the note before they
could foreclose on the Mielkes’ condominium. Since they did not
possess the original note, Deutsche Bank had to demonstrate
that it complied with section 673.3091 to show that it was the
holder of the note pursuant to section 673.3011(3). Therefore, the
right to enforce the lost note did not accrue until the Mielkes
defaulted.




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                                IV.

     Section 673.3091, Florida Statutes, does not create a cause of
action separate from a mortgagee’s right to foreclosure. The right
to enforce a promissory note accrues when the default occurs,
regardless of whether the plaintiff possesses the note. As a result,
the trial court did not err in entering Final Judgment in favor of
Deutsche Bank.

    AFFIRMED.

MAKAR and WINSOR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Robert J. Powell, Clark Partington, Pensacola, for Appellants.

Allison Morat and Teris A. McGovern of Pearson Bitman, LLP,
Maitland, for Appellee.




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