Can a Florida Bank File a New Foreclose Lawsuit 5 Years After Your Case Was Dismissed? When is a Florida Bank Foreclosure Lawsuit Barred by the Statute of Limitations?

Posted By on April 29, 2014

Last Update: 03/16/16

Last Friday, the case of U.S. Bank National Association vs. Patricia J. Bartram, et al was decided by the Florida Fifth District Court of Appeals, and it’s potentially very bad news for all the Florida homeowners who were hoping to fight their Florida foreclosure with an argument about the bank missing its deadline to foreclose within a five (5) year time period.
 

 
Before Friday, there was a legal debate on when that time ticker for the 5 year period begins to tick — what date on the calendar begins the count down on the bank’s deadline to sue on their old foreclosure cases?

In Florida, the law states that creditors only have so long to sue to collect a past due debt, after which they are barred from filing that lawsuit. Basically, creditors have 5 years to sue to collect on a defaulted debt.

So, when is it too late for the bank to foreclose on a mortgage?

Arguments have been made that the time ticker begins to run when the bank “accelerates” the amount due and that the “acceleration date” (the date that the bank called the entire mortgage or home loan due) is the date that the statute of limitations begins to run. Easy enough to figure that date out — under most mortgages, the defaulting person gets written notice from the bank of the acceleration (that notice of acceleration can be found in the court records). Everyone can point to that date, no confusion.

However, what happens when there’s a “default”, and an acceleration, and a foreclosure lawsuit which is later dismissed?  Can the bank foreclose again?  Does the statute of limitations prevent the bank from foreclosing again if 5 years have passed since the acceleration date?

As of last Friday, there’s Florida case law answering this question (at least in the 5th Circuit). And in an attempt to nail things down for good, the appellate court has sent its opinion up to the Florida Supreme Court for review, asking the High Court to grade its papers in a certified question:

Because we believe the issue we resolve is a matter of great public importance, we certify the following question to the Florida Supreme Court: Does acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, trigger application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on all payment defaults occurring subsequent to dismissal of the first foreclosure suit?

The Impact of US Bank Nat’l Ass’n v. Bartram

What the Bartram decision has done is this: it answered the question of when the bank’s deadline, the statute of limitation, begins to run and it decided that a bank can accelerate its mortgage more than one time.

In this case, the bank’s lawyers (the Law Offices of David J. Stern) filed a  foreclosure lawsuit in 2006 and in May 2011 the foreclosure lawsuit was dismissed after the bank failed to appear at a case management conference. The note and mortgage were cancelled by court order. The judge ruled that the bank had lost its right to collect on any of the debt.

So, the bank appealed and it is from this appeal that we have this new decision.

According to the appellate court, if the bank accelerates, and the case is later dismissed, the bank can still re-foreclosure and re-accelerate the mortgage.  When the bank re-accelerates and re-forecloses, it may not be able to seek collection of payments which are older than 5 years, but it can still seek collection on all payments which are not 5 years or older and on all future payments.

It doesn’t get better than this for Florida banks and it doesn’t get much worse than this for Florida homeowners who are and have been fighting a foreclosure defense for years and years (like the Bartrams, who have fought this for 8 years now – and who are now divorced).

Arguments in Bartram

Extracting from the opinion:

1. The Bank’s Argument. The Bank argued that the dismissal nullified its acceleration of future payments; accordingly, the cause of action on the accelerated payments did not accrue and the statute of limitations did not begin to run on those payments, at least until default occurred on each installment. The Bank relies heavily on Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004) (holding that dismissal with prejudice in a mortgage foreclosure action does not necessarily bar, on res judicata grounds, a subsequent foreclosure action on the same mortgage even if the mortgagee accelerated the note in the first suit) to support its position.

2. The Homeowners’ Argument. The [defendants] on the other hand, assert that the cause of action for default of future installment payments accrued upon acceleration, thus triggering the statute of limitations clock to run, and because the Bank did not revoke its acceleration at any time after the dismissal, the five-year statute of limitations period eventually expired, barring the Bank from bringing another suit.

3. The Court: The Bank wins.

Go here to read the full text of this new landmark case.  And if you are wondering what to do about that old foreclosure situation, then it’s never been more important than now to discuss your options with a Florida foreclosure defense attorney.  Unfortunately, if you have been thinking that you don’t have to worry about losing your home because the bank dismissed its foreclosure case and it’s been more than 5 years since the acceleration, then you should reconsider that position. The foreclosure mess continues…

A good piece of advice if you are facing a foreclosure issue like this is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

 

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Comments

21 Responses to “Can a Florida Bank File a New Foreclose Lawsuit 5 Years After Your Case Was Dismissed? When is a Florida Bank Foreclosure Lawsuit Barred by the Statute of Limitations?”

  1. Rick says:

    So, in light of this ruling if a bank’s foreclosure case has been dismissed by a court for whatever reason prior to the expiration of the initial 5 year limitation period and the homeowner then begins to pay the original mortgage payment the first month after the case has been recorded by the court as dismissed does this new ruling prevent the bank from filing a new foreclosure case because it is prevented from suing for accrued amounts past due prior to the initial foreclosure dismissal and going forward the homeowner makes the required payment and therefore is no longer “technically” in default thus eliminating cause for the bank to issue another acceleration notice and commence the foreclosure process all over again?

  2. Linda says:

    Are you kidding me? Please explain to me how and why Banks are able to get away with everything and I mean everything here in the State of Florida? Don’t our legislators care about homeowners? How are banks able to be so pampered? Thanks.

  3. Mark says:

    Sir, I have followed this case very closely as a homeowner in foreclosure. It’s now been five years since my letter of acceleration was sent….

  4. We cannot answer personal queries in blog post comments, so we’ve edited your comment to protect your personal information and ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  5. Mark says:

    So if a Judge dismissed “with” prejudice … and the Lender files a new default … are they suing for the payments since the dismissal ?

  6. We cannot answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  7. Cesar says:

    Can the judicial system be held at fault for twisting existing laws to accomodate bank interest. Once they accelerate the debt or file the lis pendis, they are demanding the whole balance of the loan and the late payments plus fees. There are no future payments due only one payment will be accepted, the full payment or balance. What about the surrogate signatures filed in the court files, the false assignments, and now the perjuring witnesses they use at trial. How is it that judges permit this, they are held to be impartial, but anyone with common sense knows that no one will produce fake or forged documents or even allow someone the lie about business practices to a company that they never worked for unless they know they will not be held accountable for their actions. People should start denying jurisdiction to the courts untill they are truly impartial. Try using forged or fake documents in an insurance claim lawsuit and you will find yourself behind bars and the case dismissed.

  8. Dion says:

    Wow.. My default was on 6/09 .Its been 5 years 3 months. My case was just dismissed without preudice for the fourth time….

  9. Hi Dion,
    We cannot answer personal queries in blog post comments, so we’ve edited your comment to protect your personal information and ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  10. dr.zr@hotmail.com says:

    My last default was in 2009 the case was dismissed by the court. then bank file a foreclosure using default of 2009. can this foreclosure be dismissed?.

  11. Hi Dr.Zr,
    We cannot answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  12. nancy segarra says:

    My foreclosure case of 2008 is dismiss the bank reopen. No final judgement ….

  13. Hi Nancy,
    Sorry if this is frustrating but we cannot answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat. (We removed your personal info in the comment for your privacy and protection.)

    Thanks,
    Larry

  14. BW says:

    I hope you guys are fighting this. This is a disgrace to our legal system, absolute mokery. What words can one use? SICK. So, actually there is no Statue of Limintation. (?)

    We are not that stupid, the law is written it states plainly and clearly what it means. And they must abide by it. Otherewise the way this judge is ruling is prejudicial.

    “The foreclosure “mess” continues” you siad it righ Larry !

    We don’t have to lay back and take this. FIGHT BACK ! Start a National Petition to Congress, this Sh— is out of control.

  15. BW says:

    Deprivation of Rights Under Color of Law

    accelerating the full balance

    Respectfully, the Judges are leaving out the major key facts here, the fact that it is Stated the Full Amount is accelerated not partial payments up to X date. The Full Amount is accellerated, Called Due. it does not diviate in no way otherwise. The law is clear. The Judges are wrong.

    the exercise of acceleration is a clear, unequivocal, overt act. the effect of the sworn statement that plaintiff had elected

    “Under the civil rights act of 1871 (42 U.S.C.A. Section 1983), color of law is synonymous with State Action, which is conduct by an officer that bears a sufficiently close nexus to a state so that the action is treated as though it is by the state.”

    “the appearance of an act being performed based upon legal right or enforcement of statute, when in reality no such right exists”

    “In United States law, the term color of law denotes the “mere semblance of legal right”, the “pretense or appearance of” right; hence, an action done under color of law colors (adjusts) the law to the circumstance, yet said apparently legal action contravenes the law.[1] Under color of authority is a legal phrase used in the US[2] indicating that a person is claiming or implying the acts he or she is committing are related to and legitimized by his or her role as an agent of governmental power, especially if the acts are unlawful.”

    The link below is for New York Statue (6 years) it is what it says: FULL AMOUNT.
    http://www.bhpp.com/documents/Alerts-2005/Alert-6-01-2005.pdf

    [Secured Equities Investments v. McFarland, 300 A.D.2d 1137, 753 N.Y.S.2d 264 (4th Dept. 2002)].

    The lender, aware of its jeopardy, attempted to argue that its initial acceleration back in 1989 was a nullity so that the statute of limitations could never have run on the mortgage balance (presumably only on installments older than six years). Aside from a finding that the mortgage holder was unable to submit evidence to
    support the claim that its acceleration was meaningless, the court also invoked the doctrine of judicial estoppel.

  16. BW says:

    Thers was some law/code I read about for FL that the lender can only have its case dismissed twice. (?)

  17. AL RODRI says:

    Why the system is alway to bank be able to get away with everything, if bank doing billing mistake, and return the money is not problem, doctors doing billing mistake to insurance, is a crime.
    CAN YOU TELL ME WHY?

  18. AL RODRI says:

    WHY during foreclosure law-sue, the are is not present bank witness and nor bank expert and the judge give a settlement…
    No expert from bank who´s know about loan and there is settlement…???

  19. Ben Cola says:

    I was the youngest Real /estate Broker to ever have been given a license in NJ. I am now 61 yrs old and live in FL. I’ve had quite a career and I think I’ve seen it all. This is what I think. Many people moved to Florida for reasons related to keeping their Homestead home in the event of a bankruptcy. What if some judge decides to judicially change the law and take away a persons Florida homestead? Well, that would be unconstitutional because Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). You must remember that a person purchases a home in a state He She wants to live in based on the laws in place at the time. Usually they move to FL to escape corruption and high taxes of the northern states. They make a choice to mortgage or not and if so who to mortgage with. They check for terms and conditions and strike a deal that is grounded in the law they see around them at the time including the statute of limitations is discussed when a good RE attorney is available. (That protects them in their decision). I know many people get family financing and the family just lets the Mortgagor not pay and the family dies off and the home is released later. Now if this Breach of the Constitution passes, an angry living brother or sister or inlaw may foreclose even though that was not the intent and the statute of limitations was always there to protect the intent of the parties. In 1813 Thomas Jefferson said: “The sentiment the ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just.” Now that said, what about people who’s identity has been stolen? Identity theft is a huge problem in America today and as I recall the banks were pushing loans so fast and to anyone that they mortgaged the wrong houses and allowed the wrong parties to sign. What safety net is there for these people, and there are a lot of them and as too much time ticks by, people will get old, sick, forget, die and the remaining family members will end up getting kicked out because the Bank is not subject to a statute of limitations? I don’t think so. Then on the other hand, lots of people owe me and I was told by multiple attorneys to forget it due to the Statute of Limitations and I did without any animosity. Only problem for me is that I don’t have access to the Fed Window.

  20. Florida Statute Notice Of Intent Lawsuit | Attorney - How To Claim Injuries says:

    […] Can a Florida Bank File a New Foreclose Lawsuit 5 Years … – Can a Florida Bank File a New Foreclose Lawsuit 5 Years After Your Case Was Dismissed? When is a Florida Bank Foreclosure Lawsuit Barred by the Statute of … […]

  21. Suzana says:

    The courts took the Singleton case and ran with it. In Singleton the court explained that the case is not NECESSARILY barred by res judicata:
    “For example, a mortgagor may prevail in a foreclosure action by demonstrating that she was not in default on the payments alleged to be in default, or that the mortgagee had waived reliance on the defaults. In those instances, the mortgagor and mortgagee are simply placed back in the same contractual relationship with the same continuing obligations. Hence, an adjudication denying acceleration and foreclosure under those circumstances should not bar a subsequent action a year later if the mortgagor ignores her obligations on the mortgage and a valid default can be proven.”

    Not “necessarily” doesn’t mean it cannot be barred. If the bank sues you for non payment and you prove that you did pay, then they loose. But if later you truly do not pay, the bank has the right to foreclosure. Fair enough.

    Now, this decision has been interpreted into something that makes no sense, i.e. that the bank can just refile alleging a different default date! (in other words, just lie about when borrower stopped paying, and change position in court between cases) First, the bank should be estopped by the doctrine of judicial estoppel from doing so and second this also violates the rule against splitting of the causes of action. If the defaults are the result of the same initial act of default (i.e borrower stopped paying and then never paid afterwards) then the bank shouldn’t be allowed to just allege a different date. For example, I can file a suit and allege that someone hit me with the car and I suffered back injury. If my suit gets dismissed with prejudice, I can’t then file another suit next year saying that now my knee hurts from the same accident and then next year file another suit saying that my hip is damaged too. If all of these damages are the result of something that occurred in the initial accident, I have to bring all of these to the attention of the court at once or be barred by resjudicata. Otherwise, I can file until I finally get it right or win on some technicality, which means never ending litigation. Same here, the borrower stops paying, the bank should have to file within five years from when the bank could have brought suit on the default (ex. after notice and opportunity to cure). Whether the debt is accelerated or decelerated it is irrelevant because resjudicata should bar another action based on the same event of stopping to pay the note (default). Allowing the bank to allege another default date than previously alleged should be subject to judicial estoppel. In Singleton the court explained that if the suit gets dismissed, the borrower gets put in the same contractual position as it was before the suit. But which position is that? If the borrower claims he was paying, then he is put in the contractual position where he was – continuing payment. But if the borrower admitted (or didn’t deny) default, then he should be put back in the default position where he was if the foreclosure is dismissed. Consequently, rejudicata would bar another suit based on the same continuing default position of this borrower.

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