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More on Statutes of Limitations: Bartram v. U.S. Bank Affirmed

Posted By Rachel Ramirez, Wednesday, February 1, 2017
Updated: Wednesday, June 7, 2017

February 1, 2017

by Jane Bond
McCalla Raymer Leibert Pierce, LLC
USFN Member (Connecticut, Florida, Georgia, Illinois)

Editor’s Note: This content was expanded from the version that was printed in the USFN Report (winter 2017 Ed.), which was mailed on February 1, 2017. Updated material was added to the “Proceeding Post-Bartram” and “Conclusion” sections of this article on February 6, 2017.


The landmark case on the Florida statute of limitations was affirmed by the Florida Supreme Court in Bartram v. U.S. Bank National Association, SC14-1265 (Fla. Nov. 3, 2016). That decision, upholding the Fifth District Court of Appeal, was unanimous in result and is a significant victory for the mortgage lending industry — potentially leading to the refiling of thousands of stalled cases on delinquent loans in the state.

Bartram resolves a highly litigated issue. It allows lenders to file successive foreclosure actions, even after there has been a previous acceleration of the loan and a prior involuntary dismissal of the foreclosure action, provided the subsequent default was post-dismissal and within five years of the newly-filed action.

Why is the Bartram Case Important?
Florida is a judicial state with a relatively short statute of limitations period of five years. Due to the number of foreclosure cases since the financial crisis began, and the delays in many judicial states, the statute of limitations has come to the forefront more frequently as many defaults/accelerations are more than five years old. Based on the running of the statute of limitations, borrowers are attempting to avoid all (or a portion) of the residential debt owed under their note, and eliminate the mortgage lien.

While this article focuses on the application of the statute of limitations in Florida courts, it should be noted that the case law and policies being discussed will have an impact beyond Florida. Every state has its own version of the statute of limitations; and, as the foreclosure epidemic affected each of them to a varying extent over the past decade, the question of how the statute of limitations impacts mortgage transactions is one of importance across the country.

The Certified Question to the Florida Supreme Court
In Bartram, the Florida Supreme Court answered the following certified question:

Does acceleration of payments due under a residential note and mortgage with a reinstatement provision 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 payment defaults occurring subsequent to dismissal of the first foreclosure suit?

The Supreme Court responded to the question in the negative. The answer was limited to the specific question asked, which narrowed the scope of the opinion to cases in which: (1) the mortgage includes the right to reinstate; (2) the previous case was involuntarily dismissed; and (3) the borrower has a post-dismissal default.

The Supreme Court discusses the arguments of the parties before the Fifth District Court of Appeal and specifically points to the fact that “[t]he Bank acknowledged, however, that it could not seek to foreclose the Mortgage based on Bartram’s defaults prior to the first foreclosure action, but could seek foreclosure based on defaults occurring subsequent to the dismissal of the first foreclosure action.” Many attorneys in Florida would contend that any dismissal of a case decelerates the loan and puts the parties back into their pre-foreclosure status — and all subsequent defaults are again at issue, not only the post-dismissal defaults. The holding as to post-dismissal defaults may be due to the Bank’s concession before the Fifth District and the specific question posed to the Supreme Court.

Important Attributes in Bartram
To start, a foreclosure can be refiled after previous acceleration and dismissal. In Bartram the justices began their analysis by reviewing other federal and state court decisions, along with their own previous decision in Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004), which was decided on res judicata grounds and then extended in Bartram to successive mortgage foreclosure actions in a statute of limitations context. The panel renewed their position stating, “Consistent with the reasoning of Singleton, the statute of limitations on the balance under the note and mortgage would not continue to run after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a ‘separate and distinct’ default. Rather, after the dismissal, the parties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the residential mortgage declared in the unsuccessful foreclosure action is revoked.”

Secondly, whether the prior case is dismissed with or without prejudice is immaterial for statute of limitation purposes for re-filing. The Supreme Court clearly states, for statute of limitations purposes, that a case being dismissed with or without prejudice has no bearing on a case being time-barred. In Deutsche Bank Trust Co. Americas v. Beauvais, 188 So. 3d 938, 947 (Fla. 3d DCA 2016), the Third District Court of Appeal, on rehearing, withdrew its prior opinion making this distinction. There are exceptions. Whether a case is dismissed with or without prejudice must be analyzed to ensure that the proper default date is used. If a case is dismissed with prejudice, then a new subsequent default date is needed that is post-dismissal and within five years of the new filing. If a case is dismissed without prejudice and the default date is within five years of the new case, the previous default date can be used.

Furthermore, the Supreme Court found that if there is a new default (post-involuntary dismissal) the default date must be within five years of the new foreclosure. The opinion states, “the mortgagee, also referred to as the lender, was not precluded by the statute of limitations from filing a subsequent foreclosure action based on payment defaults occurring subsequent to the dismissal of the first foreclosure action, as long as the alleged subsequent default occurred within five years of the subsequent foreclosure action” [emphasis added].

Finally, the bank is not required to decelerate the loan by an overt act. The dismissal of the case returns the parties to their pre-acceleration status. Bartram decided that “the dismissal itself — for any reason — ‘decelerates’ the mortgage and restores the parties to their positions prior to the acceleration ….” Therefore, it is not necessary to provide a notice of deceleration in Florida.

Proceeding Post-Bartram
For new cases and cases currently pending before the circuit courts in Florida, each of them will need individual review by counsel to determine the proper course of action. Many cases may already fall within the requirements of Bartram, having used a default date post (involuntary) dismissal and within five years of the new foreclosure. Some servicers are taking a very conservative position in applying Bartram to all potential statute of limitations cases, regardless of whether the previous case was voluntarily or involuntarily dismissed. In addition, servicers may be advancing the default date to a post-dismissal date and waiving the underlying pre-dismissal payments. As this can be very costly, evaluating all factors and obtaining the opinion of counsel are imperative.

Based on Florida case law and language within Bartram, proceeding on default dates within five years of the new filing is a reasonable course of action even if the default dates are pre-dismissal. Due to the specific certified question posed, Bartram included the discussion on post-dismissal defaults. From a reading of the Bartram case in its entirety, as well as surrounding case law, it does not make legal or logical sense for a post-dismissal default date to be significant as to refiling a subsequent case.

Bartram specifically states “after the dismissal, the parties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan” and “the mortgagee still has the right to file subsequent foreclosure actions — and to seek acceleration of the entire debt — so long as they are based on separate defaults [emphasis is the Court’s at 20].” “Therefore, with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage [emphasis added].” Concluding, “[t]herefore, the Bank’s attempted prior acceleration in a foreclosure action that was involuntarily dismissed did not trigger the statute of limitations to bar future foreclosure actions based on separate defaults.” This express language does not mention a requirement of a post-dismissal default and leads to the logical conclusion that any subsequent default within five years of the new filing will be within the Florida statute of limitations.


For both pending and new filings, a determination should be made as to whether a particular situation falls within the certified question that was posed in Bartram. In most cases the uniform residential mortgage is used, which includes the paragraph 19 reinstatement provision covering the first prong of the certified question. Next, the prior case must be reviewed to determine if it was dismissed pursuant to Rule 1.420(b) of the Florida Rules of Civil Procedure, which is specifically for involuntary dismissals. [Whether Bartram applies to the other dismissals listed in Rule 1.420 — such as voluntary dismissals found in subsection (a) and lack of prosecution dismissals found in subsection (e) — is debatable.] Lastly, review the current complaint to determine whether or not the default alleged in the complaint is subsequent to the dismissal of the previous foreclosure suit. If not, there may be an argument of a continuing default under Beauvais and Bollettieri Resort Villas Condominium Association, Inc. v. The Bank of New York Mellon, 198 So. 3d 1140 (Fla. 2d DCA 2016), review granted, SC16-1680 (Fla. Nov. 2, 2016), indicating that if a continuing default was pleaded in the complaint (“all subsequent payments”), then all defaults are placed at issue. Using this reasoning, all of the post-dismissal defaults were properly pleaded and there may be a default falling within Bartram’s requirements.

Along with these factors, additional examination will be needed to determine whether: (1) the statute of limitations was raised as an affirmative defense; (2) the previous case was dismissed with or without prejudice; and (3) the attorney/party raising the statute of limitations defense would be entitled to attorney fees upon dismissal.

Many times it may be in the best interests of all parties to settle the matter rather than continue the litigation. A legal analysis can be done to determine the best manner of proceeding, whether that is continuing the current case or dismissing it and refiling a new complaint. Courts may also entertain motions to stay the case pending the Supreme Court’s review of the Bollettieri case. Where Bartram discusses a refiling after an involuntary dismissal, Bollettieri involves a refiling after a voluntary dismissal. Accordingly, if a prior case involves one that was voluntarily dismissed, then the circuit court may decide to stay a current case until the Supreme Court’s decision is issued in Bollettieri.

Servicers and law firms are now receiving reinstatement and payoff requests post-Bartram, demanding quotes based only on post-dismissal defaults. Many cases filed before Bartram include default dates that are not post-dismissal. Servicers will need to confer with their counsel to determine how to handle this point. The Bartram decision states more than once that the lenders have a right to collect the full debt, as the lender may accelerate the “entire amount due under the note and mortgage” in a re-filed action.

Still, in other dicta, Bartram says “[w]hether the dismissal of the initial foreclosure action by the court was with or without prejudice may be relevant to the mortgagee’s ability to collect on past defaults.” In any potential conflict regarding amounts due, opposing counsel may be questioning the inclusion of pre-dismissal amounts in reinstatement and payoff quotes. This same contention will be raised in relation to amounts set forth in breach letters.

Even with the new issues, the long-awaited Bartram decision allowing successive foreclosure actions paves the way for many new filings in Florida and provides guidance on the narrow question posed to the Supreme Court. Servicers should solicit legal opinions from their counsel as to the applicability of the Bartram ruling to the facts of particular cases, as the judicial decision does not address everything and is conflicting in places.

The Florida statutes of limitations in a mortgage foreclosure context will continue to be closely monitored by other states, which are also wrestling with the law and equities involved in this complex area.

Copyright © 2017 USFN and McCalla Raymer Leibert Pierce, LLC. All rights reserved.
Winter USFN Report

Note for consideration of the USFN Award of Excellence: This article is a "Feature."


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