South Florida Condo Association Beats Bank in Foreclosure Fight: Bank Failed to File Lawsuit Before Limitations Deadline

Posted By on June 25, 2013

david and goliath

15th Century rendering of David felling Goliath

 

Most Florida foreclosure dockets are filled with David and Goliath stories with a home owner fighting to save the family home from the mortgage lender. However, this month there was a David and Goliath story of a different sort when a South Florida home owners’ association, the Peninsula Condominium Association in Aventura, Florida, won its legal battle against US. Bank, N.A. who was fighting for a $1.2 million condominium in the Aventura condo community.

South Florida Condo Association Beats Bank in Foreclosure Defense

The story began like many Florida foreclosure lawsuits: a loan went into default and a foreclosure lawsuit was filed by a bank to get the property through a foreclosure judgment and sale. Here, things were a bit more complicated because the type of property involved was a Florida condo.

In 2005, Rivka Bichler bought a swanky 3200+ square foot condominium in Aventura, Florida. It’s a very nice condo in a very nice location (check it out here at Google Maps).

In 2007, the owner fell behind on both the condo mortgage payments and on the condo association fees due to Peninsula Condominium Association. The Condo Association filed its own foreclosure lawsuit based on the due and unpaid condo fees and obtained a Florida foreclosure judgment on the condo in October 2010.

There had been a prior foreclosure action filed by the lender but it was dismissed without prejudice (meaning the bank could re-file the foreclosure lawsuit) in February 2011. So, the Peninsula Condo Association rented out the unit thinking that sooner or later the bank would refile their foreclosure suit. The association knew it would likely lose the condo since the bank’s mortgage would take precedence over the Condo Association’s claim.

Statute of Limitations Bars the Bank From Its Foreclosure on the Condo

Which did happen: the bank sued to foreclose on the swanky condo now owned by the Condo Association in November 2012.

However, the association used the foreclosure defense strategy of claiming that the statute of limitations barred the bank from proceeding against the association. Their argument: the time ticker for the bank to sue for foreclosure under Florida law began to run in October 2007 when the bank sent out its official Notice of Intent to Accelerate the mortgage.

Their defense argument was simple: when the bank filed its foreclosure action in November 2012, it filed too late. Under Florida law, the limitations deadline had passed.

On May 8, 2013, the Florida judge agreed and the bank did not file an appeal of his decision. The bank lost and the condo association won.

Larry Tolchinsky’s Tip:

It’s always nice to read a David and Goliath story – and this particular story has lots of interesting twists. First of all, there is the twist that a condo association filed a foreclosure action for unpaid condo fees, even with the knowledge that the mortgage lender would be filing a foreclosure action in the future. Why do this? The condo association could rent out the place and recoup some of its money while the bank took its time in foreclosing. Not every condo association does this, but it’s seen by many as a smart strategy for condo associations, particularly those suffering a high percentage of unit defaults.

Second, there is the use of a tried and true foreclosure defense tactic here: counting the months and days on the calendar to make sure that the time deadline has been met; and if it hasn’t, then to file a pleading asserting the Florida statute of limitations as an affirmative defense to the bank’s foreclosure lawsuit. It’s not often that banks miss their filing deadline, but it does happen.

Florida Statute 95.11 is clear:

95.11 Limitations other than for the recovery of real property.—Actions other than for recovery of real property shall be commenced as follows: …

(2) WITHIN FIVE YEARS.—

(a) An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.

(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of paragraph (5)(e), s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e).

(c) An action to foreclose a mortgage.

(d) An action alleging a willful violation of s. 448.110.

(e) Notwithstanding paragraph (b), an action for breach of a property insurance contract, with the period running from the date of loss.

When filing deadlines are missed, then certain foreclosure defense arguments are strong. This Florida statute bars the foreclosure lawsuit from proceeding. It doesn’t matter how legitimate the bank’s claims are, this defense is a real, powerful and fatal blow to a foreclosure action. A statute of limitations argument is a sweet win — it’s nice when the calendar is your friend.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

“I’m happy to take your call.”

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