Third District Court of Appeal
                             State of Florida

                        Opinion filed August 16, 2017.
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                              No. 3D15-2692
                        Lower Tribunal No. 15-15951
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   Wells Fargo Bank, NA, as Trustee, on behalf of the Holders of
   Structured Asset Mortgage Investments II, Inc., Bear Stearns
   Mortgage Funding, Trust 2007-AR4, Mortgage Pass Through
                  Certificates, Series 2007-AR4,
                                 Appellant,

                                     vs.

                      BH-NV Investments 1, LLC,
                                  Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Robert J. Luck,
Judge.

     Holland & Knight, LLP, and Brian K. Hole and Philip E. Rothschild (Fort
Lauderdale), for appellant.

     Matthew Estevez, P.A., and Matthew Estevez, for appellee.


Before LAGOA, FERNANDEZ, and SCALES, JJ.


     LAGOA, J.
      Appellant, Wells Fargo Bank, NA, as Trustee, on behalf of the Holders of

Structured Asset Mortgage Investments II, Inc., Bear Stearns Mortgage Funding,

Trust 2007-AR4, Mortgage Pass Through Certificates, Series 2007-AR4

(“Trustee”) appeals from the trial court’s order entering final summary judgment in

favor of Appellee, BH-NV Investments 1, LLC (“BH-NV”). We reverse.

I.    FACTUAL AND PROCEDURAL HISTORY

      Of significance to this appeal, on June 15, 2009, the Trustee filed a

complaint to foreclose on the subject property and alleged that the Borrower

defaulted by failing to pay the December 1, 2008, payment and all subsequent

payments (the “First Foreclosure Action”).      On April 1, 2011, the trial court

dismissed the First Foreclosure Action for lack of prosecution.

      Subsequently, on July 14, 2015, the Trustee filed a second foreclosure action

on the subject property, and alleged that the Borrower defaulted by failing to pay

the August 1, 2010, payment and all subsequent payments (the “Second

Foreclosure Action”).

      BH-NV1 filed a Motion for Summary Judgment asserting that the Second

Foreclosure Action was barred by the applicable statute of limitations. At the

summary judgment hearing, counsel for BH-NV relied on this Court’s opinion in

Deutsche Bank Trust Co. Americas v. Beauvais, 40 Fla. L. Weekly D1 (Fla. 3d

1 BH-NV, a non-party to the Note and Mortgage, is the current owner of the
subject property and purchased the property subject to the Trustee’s mortgage.

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DCA Dec. 17, 2014) (“Beauvais I”).           Following the hearing, the trial court

entered a written order granting BH-NV’s motion “on statute of limitations

grounds.” This timely appeal ensued.

II.   ANALYSIS

      On appeal, the Trustee contends that this Court’s en banc decision in

Deutsche Bank Trust Co. Americas v. Beauvais, 

(Fla. 3d DCA

2016) (“Beauvais II”), which withdrew Beauvais I, requires reversal of the trial

court’s order finding that the Second Foreclosure Action was barred by the

applicable statute of limitations. We agree. As this Court concluded in Beauvais

II, “dismissal of a foreclosure action accelerating payment on one default does not

bar a subsequent foreclosure action on a later default if the subsequent default

occurred within five years of the subsequent action.” 

      Moreover, the Florida Supreme Court’s subsequent opinion in Bartram v.

U.S. Bank National Ass’n, 

(Fla. 2016), reached the same

conclusion on the question at issue here—whether a subsequent foreclosure action

filed after an initial foreclosure action that sought acceleration but was later

dismissed is barred by the applicable statute of limitations.       In Bartram, the

Florida Supreme Court concluded that a “Bank had the right to file a subsequent

foreclosure action—and to seek acceleration of all sums due under the note—so




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long as the foreclosure action was based on a subsequent default, and the statute of

limitations had not run on that particular default.” 

      Accordingly, both Bartram and Beauvais II hold that a subsequent

foreclosure action is not barred so long as the second action is brought on a

subsequent default within the five-year statute of limitations period found in

section 95.11(2)(c), Florida Statutes. A review of the record evidence in this case

shows that the default in the Second Foreclosure Action is different than the

default in the First Foreclosure Action. Moreover, the record evidence further

establishes that the later default occurred within five years of the filing of that

subsequent action.

      Accordingly, we reverse the final judgment and remand to the trial court for

reinstatement of the complaint in light of the Florida Supreme Court’s opinion in

Bartram and this Court’s opinion in Beauvais II. We note that the trial court did

not have the benefit of either opinion when it rendered the final judgment in favor

of BH-NV.2

2  This Court appreciates a party filing a confession of error, especially when filed
prior to the parties expending unnecessary litigation costs and prior to this Court’s
expenditure of its limited judicial resources. Here, BH-NV filed a Confession of
Error on July 19, 2017, based on this Court’s decision in Wells Fargo Bank, N.A.,
v. Spence, 

(Fla. 3d DCA 2017). We note that Spence was decided
on April 5, 2017, well before BH-NV’s Answer brief was filed on May 22, 2017.
As a result of BH-NV’s failure to file its Confession of Error earlier even though
Bartram, Beavais II, and Spence were decided well before its Answer brief was
due, Wells Fargo was required to incur the expense of preparing and filing both an
Initial Brief and a Reply Brief, and this Court was required to consider a matter

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     Reversed and remanded for reinstatement of complaint.




where the legal issue presented had been resolved against BH-NV’s position by
both this Court sitting en banc and the Florida Supreme Court.

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