Opinion
No. 1D21-1484
02-16-2022
TERRA MAR PROPERTY MANAGEMENT, LLC, as Successor Trustee of the Duval County Land Trust #168143-4130, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FBS, d/b/a Christiana Trust, not individually but as Trustee for Pretium Mortgage Acquisition Trust ; and Christie Engstrom, a/k/a Cristie Lynn Engstrom, a/k/a Cristie L. Engstrom, Appellees.
Bradley R. Markey and Ryan T. Hyde of Thames Markey, P.A., Jacksonville, for Appellant. Gennifer L. Bridges of Burr & Forman, LLP, Orlando; Jacqueline A. Simms-Petredis of Burr & Forman, LLP, Tampa, for Appellee Wilmington Savings Fund Society.
Bradley R. Markey and Ryan T. Hyde of Thames Markey, P.A., Jacksonville, for Appellant.
Gennifer L. Bridges of Burr & Forman, LLP, Orlando; Jacqueline A. Simms-Petredis of Burr & Forman, LLP, Tampa, for Appellee Wilmington Savings Fund Society.
Kelsey, J. Appellant, the current owner of a residence in Duval County, asserts only one issue: that because the original mortgagor gave up all rights to the property in a bankruptcy proceeding, and then more than five years elapsed before Appellee, as successor to the original mortgagee, filed the current foreclosure action, the statute of limitations barred Appellee's foreclosure. See § 95.11(2)(c), Fla. Stat. (establishing five-year statute of limitations for foreclosure actions).
Because this is a legal issue, our standard of review is de novo. BMG Realty Group, LLC v. U.S. Bank Nat'l Ass'n , 291 So. 3d 165, 166 (Fla. 2d DCA 2020). We have carefully considered all of Appellant's arguments, but we reject them and agree with the Second and Fourth Districts' recent treatment of the same issues.
The Second District rejected a property owner's identical argument in BMG Realty . There, as here, a successor owner argued that the original borrowers' surrender of the property in bankruptcy accelerated the debt and triggered the five-year statute of limitations; and once the successor mortgagee failed to foreclose within that period, it lost any right to do so later—regardless of ongoing default. Id . at 166–68. As the Second District correctly reasoned, though, a continuing state of default creates a continuing window for acceleration and foreclosure. Id. at 166–67.
The Second District relied on Bartram v. U.S. Bank National Association , 211 So. 3d 1009 (Fla. 2016), which held that the statute of limitations does not bar a second "acceleration and foreclosure predicated upon subsequent and different defaults" after a first foreclosure action, acceleration, and dismissal. Id. at 1017 (quoting Singleton v. Greymar Assocs. , 882 So. 2d 1004, 1007 (Fla. 2004) ); see also id. at 1019 (explaining the dismissal simply places the parties "back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the residential mortgage declared in the unsuccessful foreclosure action is revoked"). As the Bartram court explained, the installment nature of a mortgage continues until the debt is paid in full or a final judgment of foreclosure is entered. Id . at 1018–19.
The Second District in BMG Realty likewise rejected the second part of the argument presented both there and here: that surrender in bankruptcy not only relieves the debtor's liability but also eliminates the mortgagee's ongoing right to foreclose upon the occurrence of future defaults. To the contrary, while surrender and discharge in bankruptcy relieve the debtor's personal liability, bankruptcy does not eliminate in rem liability or bar subsequent foreclosure after subsequent or ongoing defaults. BMG Realty , 291 So. 3d at 167. In short, a mortgagor's surrender and discharge in bankruptcy do not eliminate the debt itself, nor the mortgagee's future right to foreclose against the property to collect that debt. The debtor can be freed from the debt, but that does not convey a free house. See Nationstar Mortg., LLC v. Brown , 175 So. 3d 833, 834 (Fla. 1st DCA 2015) ("[A] note securing a mortgage creates liability for a total amount of principal and interest, and [ ] the lender's acceptance of payments in installments does not eliminate the borrower's ongoing liability for the entire amount of the indebtedness."); see also Bartram , 211 So. 3d at 1018 (approving and quoting Brown , 175 So. 3d at 834 ).
Likewise, in Can Financial, LLC v. Krazmien , 253 So. 3d 8 (Fla. 4th DCA 2018), where the original mortgagor asserted the arguments also presented here, the Fourth District held that bankruptcy does not trigger a single five-year statute of limitations where defaults continue. Id . at 11. Rather, continuing defaults after a borrower's discharge in bankruptcy properly formed the basis of a future foreclosure action against a subsequent owner. Id . The court explained that the "creditor's right to foreclose on the mortgage survives or passes through the bankruptcy," and that after a discharge the bank might not want to foreclose or dispossess the debtor, the debtor can continue to make periodic payments to discourage the bank from foreclosing, and the Bankruptcy Code specifically empowers the bank to accept those payments in lieu of foreclosure. Id. at 10–11 (quoting Johnson v. Home State Bank , 501 U.S. 78, 84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) ; Alvarez v. Bank of Am. Corp. , No. 14-CV-60009-KAM, 2015 WL 12670510, at *2–4 (S.D. Fla. Apr. 17, 2015) (rejecting borrower's claim that discharge constituted a default on the entire mortgage thus beginning the statute of limitations, and finding no evidence bank had accelerated the loan)). Finally, the court found the terms of the mortgage remained intact after discharge; thus, every subsequent missed payment constituted a default triggering a new statute of limitations period. Krazmien , 253 So. 3d at 11.
Accordingly, Appellant, as a subsequent owner of the property (having purchased it for pennies on the dollar at a homeowners' association's junior-lienholder foreclosure), took it subject to the mortgagee's ongoing rights, unaffected by the bankruptcy surrender or discharge. We therefore affirm the final judgment of foreclosure.
AFFIRMED .
Osterhaus and Jay, JJ., concur.