Complicated Breakdown of New Florida Foreclosure Real Estate Law
Every so often, a client facing a second, third or even fourth foreclosure lawsuit asks me a question: could the bank keep filing foreclosure actions against me even though the first lawsuit was filed more than five years ago? The Florida 5-year Statute of limitation rule is complex; however, Florida Supreme Court has finally articulated its position on this issue yesterday by releasing the long-awaited Bartram opinion confirming that the statute of limitations does not apply to foreclosures — but with a very a thin silver lining.
The opinion that quite frankly, came out exactly as I expected, disregards the cherished concept of separation of powers between the judiciary and the legislature.The Florida Supreme Court has declared that where a first foreclosure lawsuit is involuntarily dismissed by the court, it does not trigger the application of the statute of limitations to prevent a second foreclosure action based on payment defaults occurring after dismissal of the first foreclosure lawsuit. In other words, a lender can file a second lawsuit based on payments default occurring after dismissal of the first lawsuit. Notably, the Court specifically bases its decision on the language of a standard residential mortgage, as opposed to all mortgages.
The Court’s opinion is not based on some new analysis. To the contrary, the premise of the opinion is the Singleton decision and a wide selection of post-Singleton appellate cases. Rather than introduce anything new to their analysis, the Court simply says that the analysis in Singleton (based on a legal theory of res judicata) equally applies in the statute of limitations context. So, just as Singleton holds that each new default is the basis for a new cause of action, with each subsequent default, the statute of limitations runs from the date of new default.
Apparently, there is no special magic to the words “with prejudice” or “without prejudice.” Whether dismissal of a prior lawsuit is with or without prejudice does not alter the Court’s conclusion. The fact is, each default which post-dates the dismissal date of the earlier foreclosure action creates a new cause of action, provided that the suit is filed within five years of the alleged default date. Notably, however, “without prejudice” may allow a lender to bring another foreclosure lawsuit on the same default. No matter the permutation, it is clear that any suit must be filed within five years of the specific default date upon which it is based. At least the number “five” means something.
According to the Court, by virtue of the “reinstatement” provision in the ‘standard residential mortgage’ (generally, paragraph 19), the loan continues to be an installment loan even when a lender files a foreclosure lawsuit because acceleration is not effective prior to the entry of a final judgment. Moreover, dismissal of the foreclosure action revokes any acceleration, without the need for any notice of deceleration. Poof…. Just like that. How? Why? Those are some of the many questions the Court just does not answer, as the Justice Lewis notes in his concurring opinion.
As If No Default Had Even Occurred
The Opinion is riddled with impracticalities and is out of touch with the mechanics of mortgage loan servicing and lending practices. For example, the Court suggests that if the foreclosure action is dismissed, the borrower is simply able to resume making the standard monthly payments after the dismissal as if no default had occurred… The Court does not seem to recognize that mortgage servicers often reject payments after a default has already occurred, thus would not accept the contemplated payments from the Borrower.
Stand Your Ground
While the Bartram decision may have dealt us a hefty punch, it has by no means knocked us out. There are still plenty of issues and defenses that we have against the banks including standing and securitization failures … there are still plenty of Borrower friendly opinions regarding improper hearsay, untrustworthy business records and boarding process issues. Please remember that all is not lost. Homeowners need to continue to stand up and fight and we here at Oppenheim Law will continue to be in your corner.
From the Trenches,
Oppenheim Law Firm – Real estate and foreclosure defense attorney Roy Oppenheim passionately defends Florida homeowners and investors from foreclosure, arranging short-sales, loan modifications, mortgage advice, commercial litigation, and business related matters. Roy is also the original creator of the South Florida Law Blog, named the best business and technology blog by the Sun-Sentinel. Share your comments and thoughts on the Oppenheim Law digital media social networks; we’d love to hear from you.