So continuing on this series of the hottest topics in foreclosure, I offer this series of takedowns of the Deutsche Bank v. Beauvais opinion out of Florida’s 3rd DCA which finds that the 5 year statutes of limitations applies in foreclosure cases. Now, you really must see the oral arguments that I’ve done analysis and posted elsewhere, but the critical thing is this whole case has been reduced down to a very lengthy written opinion that asserts:
A bank must foreclose within 5 years from the date of acceleration!
But then the banks come back and say,
We’re Special
Banks should not be expected to file the same rules as everyone else!
And now, they put all real clear into their written brief:
In reaction to the 2007 debt crisis, “many lenders voluntarily dismissed up to
thousands of foreclosure actions, thinking it better to collect their original loan
documents and refile another day” and “the courts involuntarily dismissed
innumerable foreclosure actions to clear their overcrowded dockets.”
The panel’s decision greatly impacts the jurisprudence of this state regarding
the statute of limitations in the mortgage foreclosure context. Specifically, the
panel’s decision is the first of its kind in the State to hold that the distinction
between an initial foreclosure action being dismissed “without prejudice” and
being dismissed “with prejudice” is an issue. much less a detenninative issue. [f
the panel’s decision is allowed to stand, it would set a judicial precedent regarding
the “with or without prejudice” distinction that could affect the developing
jurisprudence in Florida regarding this issue, including the Florida Supreme
Court’s current consideration of the Bartram case.
A determination for the first time that the running of the statute of
limitations is impacted by whether the first foreclosure action was dismissed with
or without prejudice and that a dismissal without prejudice causes the statute of
I imitations to continue to run, but a dismissal with prejudice does not, is a decision
of great public importance impacting numerous foreclosure actions. Prior to this
opinion of the panel, a litigant relying on existing decisions would have properly
determined that a dismissal of the lawsuit was a termination of the prior
acceleration, and whether or not such a tennination was with or without prejudice
would simply be irrelevant.
As explained above, the panel has already announced its conflict with the
Fourth District Court of Appeal’s Evergrene decision. See Beauvais, 2014 WL
7156961, at *10. The panel’s decision also directly conflicts with the Fifth District
Court of Appeal’s decision in Bartram. In this case, the panel held that the
“‘ ~without prejudice” and “with prejudice” distinction is a “dispositive distinction.”
Beauvais, 2014 WL 7156961 at *6 (emphasis added). By contrast, in Bartram, the
Fifth District Court of Appeal held that such a distinction is “nol material for
purposes of the issue 01 hand.” Bartram, 140 So. 3d at 1013 n.1 (emphasis
added)
Below is the full motion for rehearing:
