In the world of foreclosure, what is right side up can often seem upside down. Thus, in this topsy-turvy world of foreclosure, the Third District Court of Appeals is trying to grapple with the issue of and foreclosure. After granting rehearing in . It’s hard to believe what happened after appellate court grants rehearing in Beauvais and foreclosure. Continue reading
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).
For more information on the Five Year Statute of Limitations click here.
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Part 1: Burning Issues Regarding the Foreclosure Five Year Statute of Limitations and Who it Affects
In part one of his two part video series Roy Oppenheim discusses the burning issue regarding the foreclosure five year statute of limitations rule and who it affects. Continue reading
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WEST PALM BEACH — Florida’s five-year deadline to foreclose on a home is ticking on thousands of aging cases statewide, giving lucky borrowers a shot at a free house and catching banks with muddled files unaware.
The statute is common contract law that says a person has five years to sue on a debt, with the right to collect that money expiring at the end of the time period.
But its application to foreclosures is unsettled. A very specific set of circumstances must be in play for a homeowner to walk away a jackpot winner, and without clear case law or a high court’s ruling, its impact on foreclosures filed between 2007 and 2009 is hazy.
Still, a few prominent judgments in favor of owners, including a multi-million-dollar waterfront mansion in Boca Raton, have presented another surreal twist in Florida’s lengthy foreclosure fiasco.
“At some point there has to be an end to the dispute, and if a bank sits on its rights for five years, or they try once and fail and don’t bother to try again, then they abandon their right to go after someone,” said foreclosure defense attorney Michael Wasylik. “You either pull the trigger or you don’t, and you get five years to do it.”
No one knows how many foreclosure cases the deadline could affect, but estimates range from several hundred to thousands.
In Palm Beach County, 30,100 foreclosures were filed in 2008. There are about 1,550 still in the system that are five years old or older.
But it’s not just age that determines whether the statute of limitations will grant a free house.
The most common scenario in Florida: The bank filed the initial foreclosure, then dismissed it for whatever reason and failed to refile during the five-year period. It is possible that cases currently in the system, and older than five years, could get dismissed and then can’t be refiled because the allotted time has run out.
It’s also critical to know when the clock started ticking. Most attorneys agree it’s at the time of “acceleration” — when the bank decides after a series of missed payments that the entire loan amount is due. That typically happens when the foreclosure is filed with the court. Continue reading