Mortgage Foreclosure Action Barred by Statute of Limitations Based On Prior Involuntary Dismissal Without Prejudice

Statutes of Limitations in Residential Foreclosure Actions Presented by: Sara Manaugh, brooklyn legal services randi Scherman, Staten Island Legal Services Agenda Time limitations applicable to mortgage loans When the statute runs Acceleration defined Tolling, failed acceleration and deceleration

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The mortgage industry scored a significant victory last week when the florida supreme court released its decision in Bartram v. U.S. Bank, N.A. broadly approving of the approach taken by the Fifth District Court of Appeal and other courts in addressing the application of the statute of limitations in the context of an action for foreclosure.

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The issue of whether subsequent foreclosure actions can be barred by the statute of limitations when an initial action is dismissed with or without prejudice remains unsettled in Florida. Until these issues are resolved by the Florida Supreme Court, lenders should take prudent steps to avoid an involuntary

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].

Whether there exists a limitation on refiling an action after more than one involuntary dismissal without prejudice, particularly in the mortgage foreclosure context, has been a source of some confusion. florida rule of Civil Procedure 1.420, addressing involuntary dismissals, provides that

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The Court ultimately held that where a mortgagee’s prior foreclosure action was dismissed with prejudice, its subsequent foreclosure case is not barred by the statute of limitations so long as (1) the newly alleged default date post-dates the dismissal of the first action and (2) the subsequent lawsuit is filed within five years of the newly alleged default date.

Make 50,000 A Month with Foreclosure Clean Out After the dismissal without prejudice, the parties returned to the status quo that existed prior to the filing of the dismissed complaint. As a matter of law, appellant’s 2012 foreclosure action, based on breaches that occurred after the breach that triggered the first complaint, was not barred by the statute of limitations.