The Bank of New York Mellon as v. Janice Pedersen, et al

Filing

Opinion issued by court as to Appellants Janice L. Pedersen and Stephen J. Pedersen. 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. (Opinion corrected on 8/25/2017)--[Edited 08/25/2017 by JRP]

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10113
Non-Argument Calendar
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D.C. Docket No. 8:15-cv-02954-JSM-AAS

THE BANK OF NEW YORK MELLON AS TRUSTEE FOR NATIONSTAR
HOME EQUITY TRUST 2007-A,
Plaintiff-Appellee,
versus
JANICE L. PEDERSEN,
STEPHEN J. PEDERSEN,
Defendants-Appellants.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 25, 2017)
Before TJOFLAT, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Janice and Stephen Pedersen appeal pro se the district court’s grant of
summary judgment of foreclosure and reestablishment of a lost instrument to Bank
of New York Mellon (“BONYM”). On appeal, the Pedersens argue that the
district court erred in granting summary judgment because BONYM was not
entitled to enforce the instrument without the original note and because res
judicata and the applicable statute of limitations barred suit.
We review de novo a district court’s grant of summary judgment. Furcron
v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016). A grant of
summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Quigg
v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016). We view the
evidence in the light most favorable to the nonmoving party, draw all reasonable
inferences in favor of the nonmoving party, and may not weigh conflicting
evidence or make credibility determinations. Furcron, 843 F.3d at 1304. Pro se
pleadings are held to a less stringent standard than pleadings drafted by an attorney
and are liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).

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Under Florida law, a lost instrument can be enforced if the person seeking to
enforce the instrument was entitled to enforce the instrument when the loss
occurred or acquired ownership of the instrument from someone entitled to enforce
it when the loss occurred, the loss was not the result of a transfer or seizure, and
the instrument cannot reasonably be obtained. Fla. Stat. § 673.3091(1). The
person seeking to enforce the instrument must prove the terms of the instrument
and the right to enforce it, and then it is as if the person has produced the
instrument. Id. § 673.3091(2).
Whether res judicata bars a claim is a question of law that we review de
novo. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). When
determining whether to give a state-court judgment preclusive effect, we apply the
res judicata law of the state whose decision could bar further litigation. Kizzire v.
Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006). In mortgage cases,
the Florida Supreme Court previously held that when a mortgage contains a
reinstatement provision, the involuntary dismissal of a foreclosure action—either
with or without prejudice—acts as a revocation of the acceleration of the mortgage
and reinstates the borrower’s right to make payments on the note and the lender’s
right to seek acceleration and foreclosure on subsequent defaults. Bartram v. U.S.
Bank Nat. Ass'n, 211 So. 3d 1009, 1012 (Fla. 2016). The parties are effectively
returned to their pre-foreclosure complaint status such that the mortgage remains
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an installment loan, allowing the borrower to make installment payments and
resulting in default when they do not. Id. Each new default presents a separate
cause of action, and, thus, the denial of an action for acceleration and foreclosure
does not trigger res judicata and bar foreclosure actions based on separate and
distinct defaults. Id. at 1017–18.
In diversity actions, we apply the state statutes of limitations. Cambridge
Mut. Fire Ins. Co. v. City of Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983).
Florida's statute of limitations for mortgages states that an action to foreclose on a
mortgage must be commenced within five years of the date on which the cause of
action accrues. Fla. Stat. § 95.11(2)(b)–(c), § 95.031(1). The statute of repose for
mortgages in Florida provides that a mortgage shall terminate five years after the
date of maturity if the date of maturity is ascertainable from the record of the
mortgage. Fla. Stat. § 95.281. Florida courts have recognized that the statutes of
limitations and repose can begin to run on the date that an acceleration clause is
invoked. Smith v. F.D.I.C., 61 F.3d 1552, 1561 (11th Cir. 1995).
In an action based on diversity jurisdiction, state law determines when the
action commenced for statute of limitations purposes. See Walker v. Armco Steel
Corp., 446 U.S. 740, 753 (1980). The Florida Supreme Court has held that when
dismissal of a foreclosure claim revokes acceleration, the statute of limitations on
the mortgage ceases to run and the borrower’s right to make payments on the note
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and the lender’s right to seek acceleration and foreclosure on subsequent defaults
are reinstated. Bartram, 211 So. 3d at 1012. As in the Florida res judicata
analysis for mortgages, the parties are returned to their pre-foreclosure complaint
status such that the mortgage remains an installment loan, and each new default
creates the right, but not the obligation, to accelerate the debt—which would start
the statute of limitations. Id. at 1019–20.
BONYM was entitled to enforce the mortgage against the Pedersens even
without the original note because they made the necessary showings regarding the
information in the original note and their right to enforce the note. See Fla. Stat.
§ 673.3091. Res judicata did not bar BONYM’s suit because the dismissal of an
earlier suit filed by a predecessor in interest revoked any acceleration of the debt,
which reverted the mortgage to an installment loan and created new defaults. See
Bartram, 211 So. 3d at 1012. Suits over new defaults are not barred by res
judicata, and, thus, the Pedersens’ failure to make payments after acceleration was
revoked allowed BONYM to sue under new causes of action that were not barred.
See id. at 1017–18. Similarly, the statutes of limitations and repose did not bar suit
because the revocation of acceleration by the previous dismissal halted the statute
of limitations until there was another acceleration or the loan reached maturity.
See Fla. Stat. § 95.11(2)(b)–(c), § 95.031(1), § 95.281; Smith, 61 F.3d at 1561;

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Bartram, 211 So. 3d at 1012, 1019-20. Accordingly, we affirm the district court’s
grant of summary judgment.
AFFIRMED.

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