Third District Court of Appeal
State of Florida
Opinion filed April 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 (Tampa), for appellee.
Before SHEPHERD, SALTER and EMAS, JJ.
SALTER, J.
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”),1 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
limitations2 applicable to the mortgage note.
This Court’s decision issued today on rehearing en banc in the case of
Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575 (Fla. 3d DCA Apr.
13, 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 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
1 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.
2 § 95.11(2)(c), Fla. Stat. (2014).
2
within the limitations period.”).
The record in the present case, however, discloses that HSBC asserted the
same payment default and basis for acceleration in both the 2008 and 2014
complaints. As a result, we reverse the final judgment of foreclosure and remand
the case for disposition in accordance with today’s opinion in Beauvais.3 On
remand, the trial court is to determine the correct sum of principal and interest due
under the mortgage note calculated by excluding monthly instalment payments due
over five years before the commencement of the second foreclosure suit by HSBC
(January 24, 2014). That recalculation will also affect the Collazos’ redemption
rights under the terms of the mortgage.4
Reversed and remanded with instructions.
3 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.
4 On remand, the trial court should also confirm the identity of the plaintiff
(identified in paragraph 3 of the final judgment under review as “PHH Mortgage”
rather than HSBC).
3
