In previous blogs, we’ve talked about the Florida foreclosure statute of limitations. You may be familiar with the phrase “statute of limitations” from watching legal or crime TV shows. The statute of limitations is the time limit that a plaintiff or the state has to bring an action to the court’s attention. According to Florida Statute 95.11, the statute of limitations for a foreclosure is five years. Typically, there is a clear date when the time to bring suit begins to run. However, Florida Foreclosure law is different because of how the courts have interpreted the homeowner’s obligations under the promissory note.
In 2004, the Florida Supreme Court ruled in Singleton v. Greymar Associates, 882 So.2d 1004 (Fla.2004) that each payment that a homeowner misses, constitutes a new reason for banks to bring a foreclosure action. However, when a foreclosure lawsuit is filed, the loan is accelerated and the entire loan amount called due. This implies that after acceleration, there are no further payments upon which the lender can base a foreclosure action. Now, it is for the Florida Appellate Courts to decide if and how a lender can decelerate a mortgage, and thus have new payments upon which to base a foreclosure lawsuit.
What’s Happening Now
The premier case in this area is U.S. Bank N.A. v. Bartram, which was argued before the Florida Supreme Court on September 11, 2015. In Bartram, the trial court ruled that U.S. Bank’s mortgage was unenforceable because more than five years had passed since it first tried to foreclose its mortgage. The 5th District Court of Appeal (covering foreclosures in Orlando and in Daytona Beach) overturned the trial court’s decision, concluding that U.S. Bank could bring a lawsuit based on payments due after its foreclosure case was dismissed, therefore, the mortgage remained an enforceable lien on the property. The 4th District Court of Appeal (in charge of foreclosures in Broward County through Indian River County, and the 1st District Court of Appeal (which covers foreclosures in the panhandle through Jacksonville) have agreed with the 5th District Court of Appeal.
Miami Foreclosure law is somewhat different. In Deutsche Bank Trust Co. Americas v. Beauvais, the 3rd District Court of Appeal (the appellate court in charge of foreclosures in Miami-Dade County and foreclosures in Monroe County) ruled that the dismissal of a foreclosure action does not automatically decelerate the mortgage loan absent some other action by the lender. Therefore, Deutsche Bank’s second foreclosure action was barred, because it was more than five years after its first. The Florida 3rd DCA did, however, agree that mortgage remained an enforceable lien on the property, should the lender take steps to decelerate the mortgage. The 3rd DCA received a lot of attention for this ruling, and all of the judges of that court heard arguments on the issues again on November 12, 2015. It is anticipated that the case will be appealed to the Florida Supreme Court, regardless of their eventual decision.
What you can do
All Florida Foreclosure attorneys are eagerly anticipating the Florida Supreme Court’s final ruling in Bertram and the 3rd DCA’s final ruling in Beauvais. When looking for a foreclosure attorney in South Florida, it is important to find someone who keeps a close watch on the appellate courts. This is particularly true if your lender filed a previous foreclosure lawsuit in 2009 or 2010. This area of law is confusing and constantly changing. Therefore, it is vital for your attorney to keep abreast of all of the recent case law on the foreclosure statute of limitations, and be able to explain all the nuances to the South Florida courts. To stay updated on the outcome of this case and all other Miami foreclosure law news, visit our blog frequently. While there, sign up to receive our newsletter!