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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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