1. When does the Statute of Limitations begin to run?
The Statute of Limitations begins to run when the bank files a Complaint to foreclose or otherwise affirmatively communicates acceleration of the balance of the loan for the home to the borrower in writing.
2. How has Florida ruled on it?
One Florida court has held that when a first foreclosure action is dismissed, without prejudice, the Statute of Limitations begins to run with the filing of the first action, and continues to run in the absence of a modification or reinstatement.
3. What should I do to stand my ground?
When a bank files a foreclosure suit against a homeower you should file a specific document. The document should state that the bank cannot foreclosuse on your home because they did not start the foreclosure process within the five years. The best way to stand your ground is to have an attorney evaluate your case and file the appropriate document(s) on your behalf.
4. Does it apply to me?
If the bank files the action again before the expiration of the five years, the Statute of Limitations cannot be used as a defense to foreclosure. However, under certain circumstances the doctrine of Res Judicata may prevent a lender from bringing an action on the same defaulted payment.
5. What is Florida’s future regarding the statute of limitations?
The Florida Supreme Court is currently reviewing a case that will have a tremendous impact on the Statute of Limitations for foreclosure actions. Bartram v. U.S. Bank, Nat’l Ass’n, 140 So. 3d 1007 (Fla. 5th DCA 2014), cert granted, (Fla. Sept. 11, 2014)(No. SC14-1265).
Roy Oppenheim’s commentary was originally published on Yahoo Homes! and is being redistributed on South Florida Law Blog with their permission
Like Freddy Krueger, Jason Voorhees, and Jigsaw, they just keep coming back, even though no one really wants them to. And even when the homeowner manages to escape a “haunted” home, it isn’t always the end of the story — case in point, the story of Joseph Keller, victim of the newest villain, the “Zombie Title.” Even for those with a strong stomach, stories like this will make your head spin. He was evicted from his Ohio home, or so he thought.
He received word from his lender that his home was being put up for auction, and so he left. Except the sale never happened, and now the debt collectors are coming after him for back taxes, sewer removal, and other bills because the home is still in his name.
It’s a limbo where your mortgage keeps coming at you, even from beyond the grave.
As an attorney I’ve been dealing with zombie foreclosures for a number of years. A zombie foreclosure starts out like any other case.
Many times we’ve been successful in getting the foreclosure dismissed because of illegal or egregious conduct by the banks for various reasons, such as the lender’s counsel failing to prove that they owe the note or that the transfers were done properly.
Or perhaps there was robosigning or fraud or some other technical, legal, or constitutional reason why the foreclosure was bad. And in at least 20 percent of those cases, the case gets dismissed.
As a real estate attorney, I’ve had plenty of prospective clients come to my office after being served with a foreclosure notice. It is safe to say they are usually not in a good mood; they are usually scared.
And the truth is I would be too. Foreclosure can be a scary process for even the most legally astute homeowner.
When a homeowner walks into my office for that first time, there is one question that comes up almost every time. It’s a basic yet very essential question to anyone under the threat of foreclosure…
What do I do next?
It may seem obvious, but there is one thing I would advise a homeowner to never, ever do — and that is nothing.
Sadly, that is the option I have seen too many homeowners take. Sometimes they see an unfamiliar lender’s name on the notice, and assume it’s a mistake. Or they believe that foreclosure is inevitable, and there is nothing they they can do to fight it.
The clock is ticking
Either way the reality is this: how long a homeowner waits to address a foreclosure notice has a direct correlation to the options that will be available to them.
In most states, you have 20 to 30 days to reply to a complaint; here in Florida it is 20 days.
In my experience, homeowners who don’t respond will probably end up with a clerk’s judgment and in default.