When an acceleration clause is absolute, the entire indebtedness becomes
due immediately upon default. Such an acceleration is self-executing, requiring
neither notice of default nor some further action to accelerate the debt. Baader v.
Walker, 153 So. 2d 51 (Fla. 2d DCA 1963).
By contrast, where the acceleration clause is optional (as it is in this case), it is not automatic or self-executing, but
requires the lender to exercise this option and to give notice to the borrower that it
has done so. See Campbell v. Werner, 232 So. 2d 252, 254 n. 1 (Fla. 3d DCA
1970) (noting that the filing of a suit for foreclosure amounted to the exercise of
the option to accelerate and operated as notice to the mortgagor of such election)
The relevant statute of limitations is provided in section 95.11(2)(c), Florida
Statutes (2008).
When the borrower defaults on a payment under a note containing an
optional acceleration clause, the lender can exercise its option to accelerate all
future payments, making the entire debt immediately due and payable. A cause of
action on an accelerated debt accrues, and the statute of limitation commences,
when the lender exercises the acceleration option and notifies the borrower of this
exercise. See Greene, 733 So. 2d at 1115; Monte v. Tipton, 612 So. 2d 714 (Fla.
2d DCA 1993)(holding that, in a mortgage containing an optional acceleration
clause, the cause of action for foreclosure did not accrue, and the statute of
limitations did not begin to run, until the lender exercised her option to accelerate
and demanded the total balance of principal and interest).
We hold that the December 7, 2007 letter did not constitute an acceleration
of the debt nor did it “apprise the maker of the fact that the option to accelerate has
been exercised.” Central Home Trust, 392 So. 2d at 933 (emphasis supplied).
Rather, the December 7th letter served as a notice of default, notice of the Snows
right to cure, and notice that Wells Fargo intended, at some unspecified future date,
to accelerate the debt if the Snows failed to cure the default as set forth in the
letter.
The Snows’ argument focuses on one portion of the letter which reads: “If
you do not pay the full amount of the default, we shall accelerate the entire sum of
both principal and interest due and payable. . . .” (Emphasis added.) We reject the
Snows’ contention that the phrase “we shall accelerate” somehow converted the
optional acceleration into a prospective, self-executing acceleration which was
automatically triggered upon the failure of the Snows to cure the default. The
December 7th letter did not indicate that Wells Fargo was exercising its option to
accelerate, but only that Wells Fargo intended to exercise its option to accelerate in
the future, should the Snows fail to cure the default. Therefore, the lapse of the 35-
day grace period (without a cure of the default) did not automatically accelerate the
debt or trigger the commencement of the five-year statute of limitations. Instead,
the limitations period commenced when Wells Fargo filed the March 12, 2008
foreclosure complaint, expressing in clear and unequivocal language that it was
exercising its option and accelerating the debt:
There has been a default under the note and mortgage
held by Plaintiff in that the payment due October 1, 2007
and all subsequent payments have not been made.
Plaintiff declares the full amount due under the note and
mortgage to be now due.
Thus, the statute of limitations would have expired March 12, 2013, and
because the second foreclosure action was filed March 5, 2013, it was not timebarred.
