Florida’s Third DCA Withdraws Opinion Impacting Mortgage Lenders

Consumer Finance   |   April 13, 2016


Last April, we provided an update on the Florida Third District Court of Appeal’s opinion in Deutsche Bank Trust Company Americas v. Beauvais. In that decision, the Third District held a dismissal without prejudice does not serve to decelerate a previously accelerated mortgage, thereby potentially requiring mortgage lenders to affirmatively decelerate mortgages or face a time bar based on the earlier acceleration.

Earlier today, after additional briefing and a rare en banc oral argument, the court withdrew its earlier opinion and released a new, 6–4, en banc decision. The new decision holds that “dismissal of a foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default.” Importantly, the court held that “the ‘with’ or ‘without prejudice’ dismissal is a distinction without a difference.”

Significantly, in another opinion released today, Collazo v. HSBC Bank USA, N.A., a panel comprised of the dissenting judges from Beauvais applied Beauvais in remanding a foreclosure case for recalculation of the amount included in a final judgment with instructions to include only amounts within the five-year statute of limitations.

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