Jorge Espinoza, et al v. Countrywide Home Loans Svc., et al

Filing

Opinion issued by court as to Appellants Jorge E Espinoza and Silvia Espinoza. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 14-13933

Date Filed: 09/26/2017

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13933
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-20756-CMA
JORGE E ESPINOZA,
SILVIA ESPINOZA,
individually and on behalf of a class similarly situated,
Plaintiffs - Counter Defendants - Appellants,
versus
COUNTRYWIDE HOME LOANS SERVICING, LP,
other, BAC home Loans Servicing, L.P.,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
BANK OF AMERICA, N.A.,
FANNIE MAE,
Defendants - Counter Claimants - Appellees,
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 26, 2017)
Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

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Date Filed: 09/26/2017

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PER CURIAM:
Jorge and Silvia Espinoza sought declaratory and injunctive relief preventing
Countrywide Home Loans Servicing, L.P. from foreclosing on their home, arguing
that because Countrywide had accelerated their mortgage in a prior, unsuccessful
foreclosure action, Florida’s five-year statute of limitations for such actions applied
to the entire balance of their loan. We stayed this case pending the Supreme Court
of Florida’s resolution of this legal issue. That Court has now spoken. Applying
its ruling, we determine that Countrywide’s prior foreclosure action did not
accelerate the payments due on the Espinozas’ mortgage. The statute of limitations
thus does not bar Countrywide from foreclosing on the Espinozas’ home.
The Espinozas obtained a loan from Amerimortgage Bankers, LLC, to
purchase a home in Miami-Dade County. Their promissory note required them to
repay the loan, in monthly installments, by September 1, 2035. To secure the note,
they executed a mortgage on their property, which Amerimortgage later assigned
to Countrywide. The mortgage contained an optional acceleration clause allowing
the holder to accelerate all amounts due and foreclose in the event of a default.
The Espinozas defaulted on their payments on August 1, 2008. On that day,
Countrywide notified the Espinozas of its intent to trigger the acceleration clause
unless the Espinozas cured their default by October 16, 2008. The Espinozas
failed to cure, and Countrywide filed a foreclosure complaint in state court on
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March 26, 2009. The foreclosure action was dismissed without prejudice on
September 13, 2013, due to Countrywide’s failure to produce loan documents. The
Espinozas remained in their home, where they continue to reside today.
In January 2014, the Espinozas filed a class action suit to quiet title against
Countrywide, Amerimortgage, Bank of America, N.A., Mortgage Electronic
Registration Systems, Inc. (MERS), and the Federal National Mortgage
Association (FNMA) (collectively “Countrywide”) in state court. They argued that
Countrywide could not foreclose on their property because its 2008 notice of intent
to foreclose had triggered Florida’s five-year statute of limitations for such actions;
they sought declaratory and injunctive relief nullifying the note and mortgage,
expunging the lien from their property’s title, and preventing Countrywide from
collecting on payments more than five years old or reporting the Espinozas’ default
to credit agencies. They also sought to quiet title. Countrywide removed the case
to the district court and moved to dismiss.
The district dismissed the Espinozas’ second amended complaint with
prejudice. The Espinozas timely appealed. After they filed their initial brief, we
stayed their appeal pending the Supreme Court of Florida’s resolution of Bartram
v. U.S. Bank National Ass’n, SC14-1265. After Bartram was decided, we lifted the
stay and ordered Countrywide to file a response brief. The Espinozas’ counsel
moved to withdraw, and we granted their motion.

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We review de novo a district court’s dismissal of a complaint, accepting as
true all material allegations in the complaint and construing the complaint in the
plaintiff’s favor. Kawa Orthodontics, LLP v. Sec’y, U.S. Dep’t of Treasury, 773
F.3d 243, 245 (11th Cir. 2014). We may affirm the district court for any reason the
record supports, even one that the district court did not rely on. Cochran v. U.S.
Health Care Fin. Admin., 291 F.3d 775, 778 n.3 (11th Cir. 2002).
Florida has a five-year statute of limitations for “action[s] on a contract,
obligation, or liability founded on a written instrument,” or “to foreclose a
mortgage.” Fla. Stat. § 95.11(2)(b), (c). The Espinozas argue that the statute of
limitations began running as to the entirety of the loan—and so bars Countrywide
from foreclosing now—on either August 1, 2008, the date Countrywide notified
them that it would foreclose if they did not cure their default, or March 23, 2009,
the date it filed its first foreclosure action. They concede, however, that despite the
fact that Countrywide threatened to trigger the acceleration clause in its
notification, it did not actually do so until it filed its foreclosure complaint.
In Bartram, the Supreme Court of Florida said:
[T]he statute of limitations on the balance under the note and
mortgage [does] not continue to run after an involuntary dismissal [of
a foreclosure action], and thus the mortgagee [is] not [ ] barred by the
statute of limitations from filing a successive foreclosure action
premised on a separate and distinct default. Rather, after the
dismissal, the parties are simply placed back in the same contractual
relationship as before, where the residential mortgage remained an

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installment loan, and the acceleration of the residential mortgage
declared in the unsuccessful foreclosure action is revoked.
211 So. 3d 1009, 1019 (Fla. 2016) (internal quotation marks omitted). This is so
“regardless of whether that dismissal was entered with or without prejudice.” Id. at
1020. In reaching this conclusion, Bartram cited the district court’s order in this
case. Id. (citing Espinoza v. Countrywide Home Loans Servicing, L.P., No. 1420756-CIV, 2014 WL 3845795 (S.D. Fla. Aug. 5, 2014)). Thus, under Florida
law, a mortgage-lender’s “acceleration of [a] loan” is not “effective before final
judgment in favor of the mortgagee-lender in a foreclosure action.” Id. at 1021.
Applying Bartram to the facts of this case, neither Countrywide’s notice of
intent to foreclose nor its prior foreclosure action that was dismissed without
prejudice triggered the statute of limitations, as neither resulted in a foreclosure
judgment in Countrywide’s favor. Id. As such, the district court properly
dismissed the Espinozas’ complaint.
AFFIRMED.

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