Where a lender files a foreclosure action upon a borrower’s default,
and expressly exercises its contractual right to accelerate all payments,
does an involuntary dismissal of that action without prejudice in and
of itself negate, invalidate or otherwise “decelerate” the lender’s
acceleration of the payments, thereby permitting a new cause of action
to be filed based upon a new and subsequent default?
We answer that question in the negative, and hold that the involuntary
dismissal without prejudice of the foreclosure action did not by itself negate,
invalidate or otherwise decelerate the lender’s acceleration of the debt in the initial
action. The lender’s acceleration of the debt triggered the commencement of the
statute of limitations, and because the installment nature of the loan payments was
never reinstated following the acceleration, there were no “new” payments due and
thus there could be no “new” default following the dismissal without prejudice of
the initial action The filing of the subsequent action, after expiration of the statute
2of limitations, was therefore barred. We reverse, however, that portion of the order
which canceled the note and mortgage and quieted title in favor of the Association.
Under the relevant statute of limitations, section 95.11(2)(c), Florida
Statutes, “[a]n action to foreclose a mortgage” “shall be commenced. . . within
five years.” The statute of limitations begins to run when a cause of action
accrues, and “[a] cause of action accrues when the last element constituting the
cause of action occurs.” City of Riviera Beach v. Reed, 987 So. 2d 168, 170 (Fla.
4th DCA 2008). An acceleration clause contained in a note which by its terms
requires payment in installments “confers a contract right upon the mortgagee
which he may elect to enforce, upon a default.” Campbell v. Werner, 232 So. 2d
252, 255 (Fla. 3d DCA 1970).
When a mortgage contains an optional acceleration clause, the statute of
limitations commences when the lender exercises this option and invokes the
acceleration clause. See Greene v. Bursey, 733 So. 2d 1111, 1115 (Fla. 4th DCA
81999) (noting that in an installment contract with an optional acceleration clause,
“the entire debt does not become due on the mere default of payment; rather, it
become[s] due when the creditor takes affirmative action to alert the debtor that he
has exercised his option to accelerate.”); Monte v. Tipton, 612 So. 2d 714 (Fla. 2d
DCA 1993); Smith v. F.D.I.C., 61 F.3d 1552, 1561 (11th Cir. 1995)(holding,
“when the promissory note secured by a mortgage contains an optional
acceleration clause, the foreclosure cause of action accrues, and the statute of
limitations begins to run, on the date the acceleration clause is invoked.”).