June 5, 2014
by Roger D. Bear
Florida Foreclosure Attorneys, PLLC – USFN Member (Florida)
The past five years in Florida have seen an unprecedented volume of foreclosure actions. The courts have struggled to deal with the cases filed, and some law firms imploded under charges of robo-signing and other alleged improprieties. Many of the cases filed years ago have lingered, and the courts have been dismissing cases if the cases are not being pushed forward. Many of these dismissed cases have due dates of more than five years ago. The question then arises as to whether there is a statute of limitations impediment to filing a new foreclosure action on those dismissed cases carrying a due date of more than five years ago.
A Florida appellate court has recently issued a ruling on the statute of limitations governing mortgage foreclosure actions. The case is U.S. Bank Nat. Ass’n v. Bartram, 2014 WL 1632138 (Apr. 25, 2014).
As stated by the court: “The issue we must resolve is whether acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed for failure to appear at a case management conference triggers application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on payment defaults occurring subsequent to dismissal of the first foreclosure suit.”
The court concluded that the statute of limitations does not bar the subsequent foreclosure action. In arriving at this conclusion, the appellate court relied heavily on the Florida Supreme Court decision in Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004). That decision held 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.
The court in Singleton reasoned that a subsequent, separate default creates a new and independent right to accelerate payment in a second foreclosure action even where the lender triggered acceleration of the debt in the prior, unsuccessful action that had been dismissed with prejudice. The court was clear that, regardless of the fact that acceleration was invoked in the first suit, the doctrine of res judicata does not necessarily bar subsequent foreclosure actions where the later suit alleged defaults other than those sued for in the first suit, because the subsequent and separate alleged default “created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action.”
Accordingly, the court in Bartram concluded that a foreclosure action for default in payments occurring after the order of dismissal in the first foreclosure action is not barred by the statute of limitations found in section 95.11(2)(c), Florida Statutes (which is five years), provided the subsequent foreclosure action on the subsequent defaults is brought within the five-year limitations period.
The Bartram court believed the legal issue resolved is a matter of great public importance, and it certified 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 Florida Supreme Court is not obligated to answer or otherwise review the certified question. So unless the Bartram decision is reversed by the Florida Supreme Court, it provides clarity that there is not a statute of limitations barrier to prevent a subsequent foreclosure action by the mortgagee based on payment defaults occurring subsequent to dismissal for failure to appear at a case management conference of the first foreclosure suit.
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