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Statute of Limitations Doesn't Apply to Foreclosures – FL Supreme Court Creates Different Rules for Mortgages

Fri Nov 4, 2016 by on Florida Law News

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.

florida supreme court

Florida Supreme Court, Public Domain, [Photo Credit: commons.wikimedia.org]

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. 

foreclosure, statute of limitations, oppenheim law, florida supreme court

“At least five years still means something to real estate law” commented Roy Oppenheim, Oppenheim Law
Copyright: hobbitfoot / 123RF Stock Photo

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,

Roy Oppenheim

Roy Oppenheim

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.

Tags: 5-year-statute-of-limitations, Bank Foreclosure, deacceleration, Florida real estate, Florida Supreme Court, reacceleration

10 responses to “Statute of Limitations Doesn't Apply to Foreclosures – FL Supreme Court Creates Different Rules for Mortgages”

  1. Anthony P Finno says:

    THANK YOU, FOR THE INFORMATION ON BANKS AND FORECLOSURES.

  2. Boaz Bar-Navon says:

    my Note was discharged in Bankruptcy in 2009 and now a zombie lender has filed foreclosure suit in rem against the property. I am defending by arguing that the discharge of the Note effectively “matured” the debt and that it is now more than 5 years for both the statute of limitations and statute of repose…and I plan to counter with a quiet title action to get my house for free. any thoughts or feedback greatly appreciated.

  3. Amanda says:

    It’s been six years since my foreclosure case was dismissed without prejudice by the court and nine years since my last mortgage payment. No action by the bank other than transferring the servicing of the loan to three different debt collectors. I now owe twice the amount of the original loan due to late fees and alleged escrow charges, despite the fact that the HOA has been paying the taxes and insurance since it foreclosed the title six years ago. I guess I will just wait another 25 years for the loan to reach the official maturity date where by virtue of the mortgage instrument, they will forever forfeit standing to foreclose. The CW/BONY loan is riddled with fraud, which I assume is why they’ve never prosecuted me. What a joke the banks and the government have become.

  4. Hi,
    It is in reality a great and useful piece of info.
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    Please stay us up to date like this. Thanks for sharing.

  5. Alex velazquez says:

    Im in a big problem i cant seem to get out of..back in 2005 i purchased a house..they called it a 80%-20% loan..first 2 years my interest was low..after the 2 years my payments went to 2200 for the 80%.595 for the 20%..i was shocked..anyways in 2008 i divorced my wife because yhe stress from these payments..for a year after i tried everything to get this house off my hands..everything!!!..the ex wife still lives in house..she refuses to sign anything to get rid of it..quick deed..no..short sale no…nothing..the bank that holds mortage the same…they reject quick deed..and will not help with nothing..here is the problem..i am sole person on the loan..my ex wife is only on the deed..last thing the bank has done is filled a volantary dismissal back on 2009…nothin else has been done…it is not on my credit..but it still showes as property owned…WHAT CAN I DO..IM GOING CRAZY OVER THIS..

  6. Jason L says:

    I have a similar situation as post above… having my mortgage discharged in my Chapt 7 bankruptcy in 2011 and won my foreclosure defense in April of 2014 from when the original case was brought against me in July of 2010. Now the lender had filed second foreclosure suit against the property as of August 2017. Since I do not have any obligations to pay back the mortgage and after being way past five years to reclaim the property from the original default date back in 2008 which, caused the foreclosure lawsuit, does the lender still have any stand to file a second lawsuit to reclaim property?
    I would appreciate any feedback to this…

  7. Christopher Manson says:

    I have a case that the Bank dismissed a foreclosure w/o prejudice in 2009 to refile again in 2017.
    Is this correct? I want to get this case closed ASAP because the association took the unit back and the property is damaged from the association water main pipes.
    Please email me concerning this issue.

  8. GRZ says:

    my issues mirror Amanda’s only the players are different. My original lender was Countrywide home loans. I believe the biggest crooks of all. Did tons of research on them and the lost notes said by CEO Linda Green never to be recovered again. Odd how they now can just use a substitute note. (does that include a substitute fake signature to replace my own?) Anyways my time-line and basic circumstances are like Amanda’s example in your blog here. You mentioned a silver lining. I’d like more said about what that is exactly. I took a spin through MERS. (a mess that was). my documents are riddled with many of the mentioned fake names commonly found on Countrywide home loans. during the MERS adventure I was instructed on different occasions to redirect my payment to several different lenders on varying dates. (this was way back in earlier times prior first foreclosure attempt). Then I heard that one of these players was being charged with arms trading with enemy countries. I’m referring to B.O.A. I said to myself at that time, who would want to see thier money going towards activities like this? What is that silver lining that trumps the issue regarding a ridiculous number of years of living in this state of limbo? The lender name just keeps changing, They have a window to pay my taxes before I get to. Just because they write and Claim to be my lender, they get first crack. What Crap. this is MY HOME. I even followed our Famous “angel of foreclosure”. We corresponded regularly. What is wrong with our Florida Supreme Court? Are we are now just stuffed in one big pillowcase and due to drown? Circumstances Very. I want out of the bag. How do they “get away with” the caper of the Missing Note and now are allowed to just create one And It’s ACCEPTED ! Corruption I say. Shame on the lawmakers.

  9. Linda Vacchino says:

    Have a second foreclosure filed in 10/2012 and dismissed 9/27/2013 based on the 5 year rule. It was reopened by a different Judge with a Case Management hearing in March 2015. Original lender filed BK and never created an assignment. Long story but they did get a judgment when another judge refused to considered the assignment was created by the plaintiff and assigned it to themselves two years later. Looking to have the judgment set aside. Did the who reopened the dismissed case err?

  10. Kathey says:

    This is all attorney scare tactics, lawyers try to steal the “post statute of limitations” house right from underneath you… your own lawyer included. On the whole, Judges do follow the law. Just do your due diligence and produce the evidence, and by all means monitor your attorney and know your case like the back of your hand.

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