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5D12-3823 op

5D12-3823 op

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Published by Foreclosure Fraud

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Published by: Foreclosure Fraud on Apr 26, 2014
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 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 U.S. BANK NATIONAL ASSOCIATION, ETC.,  Appellant, v. Case No. 5D12-3823 PATRICIA J. BARTRAM ETC., ET AL.,  Appellee.  ________________________________/ Opinion filed April 25, 2014  Appeal from the Circuit Court for St. Johns County, John M. Alexander, Judge. Jeffrey C. Sirolly and Michael D. Starks, of Baker, Donelson, Bearman, Caldwell, & Berkowitz, PC, Orlando, for Appellant. Michael Alex Wasylik, of Ricardo & Wasylik, PL, Dade City, and Dineen Pashoukos Wasylik, of Dineen Pashoukos Wasylik, P.A., Tampa, and Thomas R. Pycraft, Jr., of Pycraft Legal Services, LLC, St. Augustine, for Appellee, Lewis Brooke Bartram. T. Geoffrey Heekin, Catherine Remler Michaud, S. Hunter Malin, of Heekin, Malin & Wenzel, P.A., Jacksonville, for Appellee, The Plantation at Ponte Vedra, Inc. No Appearance for Appellee Patricia J. Bartram. PER CURIAM.
 2 The appellant, U.S. Bank National Association (the Bank), appeals a summary final judgment rendered in a mortgage foreclosure case that cancels the note and mortgage executed by the appellee, Lewis Bartram (Bartram). The trial court ruled in the summary final judgment that the note and mortgage should be cancelled based on a failed attempt to foreclose the same note and mortgage in a prior foreclosure action filed by the Bank against Bartram. The issue we must resolve is whether acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, triggers application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on payment defaults occurring subsequent to dismissal of the first foreclosure suit. We conclude that the statute of limitations does not bar the subsequent foreclosure action and therefore reverse the judgment under review. In 2005, Bartram borrowed $650,000 from the Bank’s predecessor. The loan was secured by a mortgage on real property owned by Bartram and his wife, Patricia, in Ponte Vedra Beach. After entering into the note and mortgage, Bartram and his wife divorced. In the divorce, Bartram was required to buy Patricia’s interest in the real property and accordingly executed a note (for approximately $156,000) and mortgage to Patricia. Thus, Patricia ended up with a recorded interest in the same real property as the Bank, which had taken assignment of the $650,000 note and mortgage in the intervening period. Additionally, the governing homeowners’ association, The Plantation at Ponte Vedra, Inc. (the HOA), placed liens on the property for the nonpayment of various fees. Bartram stopped making payments to the Bank in January 2006 and has not made any payments to Patricia.
 3In May 2006, the Bank filed a foreclosure suit against Bartram. The Bank alleged it had fulfilled all conditions precedent to acceleration of the note, and it accelerated all payments due. At no time during the pendency of the 2006 case did Bartram ever deny that he had defaulted and neither did he ever challenge the acceleration of the debt. In April 2011, while the Bank’s 2006 case was still pending (the record does not reveal what was occurring in the Bank’s foreclosure case for the intervening almost five years), Patricia Bartram filed a separate suit to foreclose her mortgage. She named Bartram, the Bank, and the HOA as defendants. On May 5, 2011, the trial court dismissed the Bank’s 2006 foreclosure case because the Bank failed to appear at a noticed case management conference and because the case was almost five years old, which was four years beyond time standards. The Bank did not appeal the involuntary dismissal rendered pursuant to Florida Rule of Civil Procedure 1.420(b).  A year after Patricia’s suit was filed, Bartram filed a crossclaim against the Bank in Patricia’s action, seeking declaratory judgment against the Bank. Bartram contended he was unsure of his rights and responsibilities under the note and mortgage and asserted that the Bank no longer had any interest in the real property because of the 2011 involuntary dismissal of its foreclosure action. He argued that because more than five years had passed since he had defaulted on the accelerated note and mortgage, the statute of limitations barred the Bank from now enforcing its rights under the note and mortgage. In a second count, Bartram sought to quiet his title in the real property. Bartram filed a motion for summary judgment on his crossclaim, contending that acceleration of the payments in the prior foreclosure action triggered application of the

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