Stern v. Bank of America Corporation
OPINION AND ORDER granting 11 Motion to Dismiss. The Amended Complaint is dismissed with prejudice. See Opinion and Order for details. The Clerk shall enter judgment accordingly, terminate all pending motions and deadlines as moot, and close the file. Signed by Judge John E. Steele on 6/30/2015. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Representative of the Khaki
Case No: 2:15-cv-153-FtM-29CM
BANK OF AMERICA CORPORATION,
OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion to Dismiss Plaintiff's Amended Complaint (Doc. #11) filed
on March 30, 2015.
Plaintiff filed a Response (Doc. #17) on April
For the reasons set forth below, the motion is granted.
representative of the Khaki Realty Trust (the Trust) has filed an
Amended Complaint (Doc. #9) against Defendant Bank of America
Corporation (BOA) seeking a declaratory judgment concerning a
parcel of real property owned by the Trust.
The underlying facts,
as set forth in the Amended Complaint, are as follows:
Stern, via the Trust, owns a parcel of real property (the
Property) located in Cape Coral, Florida.
(Id. at ¶ 3.)
Property was originally purchased by Ana and Marvin Fuller (the
Fullers) in 2005 and the Fullers executed a mortgage (the Mortgage)
are the time of purchase.
(Id. at ¶¶ 8-9.)
(Id. at ¶¶ 10.)
As a result of the Fullers’
accelerated the mortgage and filed a mortgage foreclosure action.
(Id. at ¶¶ 10, 25.) In April 2008, the Fullers filed for bankruptcy
and, ultimately, received a discharge of their debts including
their mortgage obligation.
(Id. at ¶¶ 11-12.)
In 2011, the
mortgage foreclosure action against the Fullers was dismissed
BOA in 2014.
(Id. at ¶ 13.)
(Id. at ¶ 14.)
The Mortgage was assigned to
In April 2014, Marvin Fuller died.
Subsequently, Ana Fuller executed a quitclaim deed transferring to
Stern her right, title, and interest in the Property.
(Id. at ¶¶
BOA is currently in possession of the Property and has
taken actions to prevent Stern from accessing and occupying it.
(Id. at ¶ 15.)
foreclosing upon the Property; (2) that BOA is not entitled to
possession of the property; and (3) that BOA must yield possession
of the property to the Trust.
BOA now moves to dismiss, arguing
that the Amended Complaint fails to state a claim upon which relief
can be granted.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzaín, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
“Factual allegations that are merely consistent
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (internal quotation marks and citations omitted). Thus,
the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
entitlement to relief.”
Iqbal, 556 U.S. at 679.
As set forth in the Amended Complaint, the Fullers’ lender
accelerated the Mortgage based upon the Fullers’ failure to make
a required mortgage payment and, after the Fullers failed to pay
the accelerated mortgage debt, the lender commenced a foreclosure
(Id. at ¶¶ 10-15, 25.)
The foreclosure action against
the Fullers was subsequently dismissed without prejudice.
According to Stern, the dismissal without prejudice did not unwind
Actions to foreclose a mortgage are subject to
a five-year statute of limitations. Fla. Stat. § 95.11(2)(c).
Stern argues that the limitations period here began to run as to
the full amount owed on the Mortgage on the date of acceleration.
Because the limitations period has since expired, Stern contends
that BOA (who now owns the Mortgage) is barred from foreclosing
upon the Property in the future, and he seeks a declaratory
judgment to that effect.
BOA argues that Stern is not entitled to
such a declaration because BOA continues to possess rights under
the Mortgage, including the right to foreclose upon the Property
on the basis of future non-payment defaults.
contends that the Amended Complaint must be dismissed.
In response to BOA’s motion, Stern relies on the Florida Third
District Court of Appeal’s recent decision in Deutsche Bank Trust
Co., Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d
DCA, Dec. 17, 2014). In Beauvais, following the borrower’s default
on a mortgage, the mortgagee accelerated the debt and commenced
(Id. at *1.)
Subsequently, the foreclosure action
was dismissed without prejudice.
Nearly six years later,
the mortgagee brought a new foreclosure action, which the borrower
argued was barred by the statute of limitations.
(Id. at *2.)
The court agreed, holding that the statute of limitations ran from
the date of acceleration and did not restart when the initial
foreclosure action was dismissed without prejudice.
(Id. at *10.)
However, Beauvais is contrary to the overwhelming weight of
authority, which holds that “even where a mortgagee initiates a
foreclosure action and invokes its right of acceleration, if the
reason, the mortgagee still has the right to file later foreclosure
actions . . . so long as they are based on separate defaults.”
Dorta v. Wilmington Trust National Association, No. 13–CV-185,
2014 WL 1152917, at *1 (M.D. Fla. Mar. 24, 2014); see also, e.g.,
Lacroix v. Deutsche Bank Nat. Trust Co., No. 14-CV-431, 2014 WL
7005029, at *2 (M.D. Fla. Dec. 10, 2014) (“Regardless of whether
the statute of limitations bars individual defaulted payments that
are more than five years old, the mortgage and note remain valid
and enforceable.”); Torres v. Countrywide Home Loans, Inc., No.
14-CV-20759, 2014 WL 3742141, at *4 (S.D. Fla. July 29, 2014)
(“While any claims relating to individual payment defaults that
are more than five years old may be subject to the statute of
limitations, each payment default that is less than five years old
creates a basis for a subsequent foreclosure or acceleration
action.”); Singleton v. Greymar Associates, 882 So. 2d 1004, 1008
(Fla. 2004) (“In this case the subsequent and separate alleged
default created a new and independent right in the mortgagee to
action.”); Evergrene Partners, Inc. v. Citibank, N.A., 143 So. 3d
954, 956 (Fla. 4th DCA 2014) (where a prior foreclosure action was
dismissed without prejudice, “any acts of default still within the
statute of limitations may be raised in a subsequent suit”).
instead concludes that the statute of limitations does not bar BOA
from foreclosing upon the Property on the basis of future nonpayment
within the past five years.
As a result, Stern cannot obtain
declaratory relief he seeks and the Amended Complaint must be
Furthermore, the outcome would not change even if the Court
were to follow Beauvais.
At most, Beauvais prevents BOA from
foreclosing upon the property as a result of non-payment defaults
Id. at *11.
However, Stern does not simply seek a
declaratory judgment that BOA cannot foreclose upon the Property
declaratory judgment that BOA may not foreclose upon the Property
for any reason, as well as a declaratory judgment that BOA may not
prevent Stern from possessing, occupying, and using the Property.
Thus, Stern is seeking to extinguish any rights BOA has pursuant
to the Mortgage and, effectively, quite title to the Property in
favor of himself. Even under Beauvais, such relief is unavailable.
As explained in Beauvais, the duration of a mortgage lien is
governed by Fla. Stat. § 95.281(1)(a), which provides that a
terminates five years after maturity.
The Beauvais court further
explained that a lender’s acceleration of the mortgage does not
accelerate the mortgage’s maturity date.
2014 WL 7156961, at *11.
maturity, the Beauvais court refused to extinguish the mortgage or
quiet title, even though the court had already held that the
foreclosure action was time-barred.
The same is true here,
as the Fuller’s Mortgage1 contains a readily ascertainable maturity
date of November 1, 2035.
(Doc. #1-5, p. 3.)
Therefore, the Court
cannot extinguish the Mortgage or quiet title to the Property in
favor of Stern, even if the Court were to follow Beauvais. Because
Stern’s requested relief is precluded as a matter of law, the Court
concludes that any further amendment to the Amended Complaint would
Therefore, the Amended Complaint will be dismissed
Accordingly, it is now
Defendant’s Motion to Dismiss Plaintiff's Amended Complaint
(Doc. #11) is GRANTED and the Amended Complaint is dismissed with
The Clerk shall enter judgment accordingly, terminate
all pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
Copies: Counsel of record
The Mortgage was provided by BOA as an exhibit to its Notice of
When analyzing a motion to dismiss for
failure to state a claim, the court typically considers only the
complaint and the exhibits attached thereto. Nevertheless, the
Court may consider the Mortgage because it is central to Stern’s
claim and its authenticity has not been challenged. Day v. Taylor,
400 F.3d 1272, 1276 (11th Cir. 2005).
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