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» VISIT US ONLINE @ DSNEWS.COM 89 or similar facts has ruled to the contrary and, over time, their rulings have not been impacted by whether the prior dismissal was with or without prejudice. For example, the 1st DCA first said in dicta in PNC Bank N.A. v. Neal, that "the dismissal with prejudice of PNC Bank's foreclosure action against the Neals does not preclude PNC Bank from instituting a new foreclosure action based on a different act or a new date of default not alleged in the dismissed action." e 1st DCA then subsequently held that it was immaterial whether the dismissal was with or without prejudice in Nationstar Mortgage, LLC v. Brown, stating that "[a]fter the dismissal without prejudice, the parties returned to the status quo that existed prior to the filing of the dismissed complaint." Indeed, the 4th DCA in Evergrene Partners v. Citibank, N.A., in a case that was dismissed without prejudice, held that "[w]hile a foreclosure action with an accelera- tion of debt may bar a subsequent foreclosure action based on the same event of default, it does not bar subsequent actions and accelera- tion based upon different events of default". Even the federal courts of Florida have exclusively found for the mortgagees in virtu- ally identical cases. For example, the United States District Court for the Southern District of Florida, whose geographic jurisdiction also covers the same area covered by the 3rd DCA but with respect to federal rather than state matters, stated that "[w]ith the exception of Beauvais, the current state of the law does not support the claim [that]…, prior accelera- tion and expiration of the 5-year statute of limitations for foreclosure actions bars all other foreclosure actions based on non-payment." e great weight of authority in favor of the mortgage industry's position should not be terribly surprising when you recognize the unique nature of the mortgage contract, which is an installment contract, and the "continuing obligations of the parties in that relationship". Although not addressing the identical issue, in Singleton, the FLSC itself made it clear that "the subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action." Id. at 1008. While a decision from the FLSC could be only weeks away given that oral arguments have now finally been held, the issue is so hot that the 3rd DCA, which is the only DCA to find in favor for the borrower thus far on the issue, also reconvened en banc in November to once again hear oral arguments in Beauvais. e issues being raised are similar to the ones that were raised to the FLSC. For example, one argument for the mort- gagee, which most courts have not explicitly discussed yet in their holdings, is the argument that most mortgages provide the borrower the right to cure the default even after acceleration by paying only the past due installments and not the entire accelerated balance. Conse- quently, since the mortgagee must accept those payments if tendered, it illustrates that the mortgage cannot truly be accelerated until it is foreclosed and reduced to a judgment. Similarly, as noted by the 1st DCA in Brown, most notes and mortgages "contain typical provisions reflecting the parties' agreement that the mortgagee's forbearance or inaction do not constitute waivers or release appellees from their obligation to pay the note in full." Finally, putting aside the legal arguments, the ultimate decision might be one based not on law but on equity. To paraphrase FLSC Justice Polston, "if the statute of limitations cuts off the mortgagee's subsequent foreclosure action, then the borrower will get to keep his $650,000 house without having to pay for it. Where is the equity in that?" Consequently, it would appear that the legal and equitable arguments are turning in the mortgage indus- try's favor and that the statute of limitations issue may soon be a thing of the past in Florida but we will not count our chickens just yet. TEXAS Nationwide Title Clearing Opens Dallas Office Nationwide Title Clearing (NTC), a post-closing services provider for the nation's largest financial institutions, investors, and servicers, announced that the company will open a new office this month in Dallas, Texas that will include a new data center. NTC's Chief Information Security Offi- cer Scotty McEntire will be based in the new facility, which will constitute a full disaster recovery site for all data and infrastructure as well as staffing. "It's not enough to provide the industry's best service if one day, through no fault of your own, you suddenly can't," said NTC CEO John Hillman. "Our clients deserve to know that if anything happens, they'll see no difference in our excellent service levels. Our new Dallas facility will allow us to cutover at a moment's notice, without loss of data, capabilities or the staff required to remain fully operational." In addition to Disaster Recovery and Business Continuity (DRBC), the site will help the company deal with work overflows due to fluctuating volumes by accommodat- ing staff for the firm's data entry, online research, and file audit work. In all, about 150 NTC employees will ultimately work for NTC in Dallas. NTC stated that they have worked very hard over the years to have a positive impact on the Palm Harbor area in which it is based. As a result, the firm has received a great deal of recognition and won many awards for its near constant philanthropy and community involvement as well as for being a great place to work. Now, with the new office opening in Dallas, the company hopes to duplicate that model in the Midwest. While the delinquency rate (share of residential mortgage loans 30 days or more past due but not in foreclosure) in Texas in January was higher than the national average (6.2 percent compared to 5.1 percent), the foreclosure rate (share of residential loans in any state of foreclosure) in Texas in February was approximately half the national percentage (0.7 percent compared to 1.3 percent). The share of non-current inventory, which includes everything 30 days or more past due or in foreclosure, was 6.9 percent for Texas in February, about half a percentage point higher than the national average of 6.4 percent for the month but still representing an over-the-year decline of 3 percent, according to Black Knight Financial Services. KNOW THIS

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