FNMA entitled to collect all amounts due and owing including those outside the five year statute of limitations.
On August 1, 2018, the Third District Court of Appeal in Gonzalez v. FNMA, Case No. 3D17-1246, (Fla. 3d August 1, 2018) held that FNMA was entitled to collect all amounts due and owing including those outside of the five year statute of limitations, as FNMA alleged that the Appellant had defaulted within the limitations period and that FNMA had exercised its right to all accelerate all sums due.
In reaching this holding, the Third District Court of Appeal held that by exercising its contractual right to accelerate, FNMA was not seeking to collect a series of individual and past and future installments, but rather the entirety of the obligation owed. It is the entire debt, not individual installments of it that comes due upon acceleration. The Court when onto hold “thus when considering an accelerated obligation, while the triggering default must occur within the five year limitations period, the debt that is the subject to judgment and collection is the accelerated debt, i.e. the entire amount due on the mortgage loan.” citing toBartram v. U.S. Bank National Ass’n, 211 So. 3d 1009, 1019 (Fla. 2016) .
The Third District Court of Appeal certified conflict with Velden v. Nationstar Mortgage, LLC , 234 So. 3d 850 (Fla. 5th DCA 2018) where the Fifth District Court of Appeal reversed and remanded for the trial court to exclude an award of damages for any defaults that occurred more than five years prior to the filing date. See id. at 852. In it’s holding the Third District Court of Appeal stated that Velden is contrary to the Florida Supreme Court’s decision in Bartram and decline to follow it accordingly.
PLEASE NOTE THIS CASE IS NOT YET FINAL.