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Foreclosure Defense Florida

Statute of Limitations in Foreclosures – What is the state of the law?

By March 31, 2015March 9th, 2021No Comments

Deutsche Bank v. Beauvais or US Bank v. Bartram

Statute of Limitations in ForeclosuresOne of the hottest topics in all of foreclosure right now is whether the traditional 5 year statute of limitations period applies in foreclosure cases.  Throughout nearly all of American jurisprudence there exist statutes of limitations periods which provide that a claimant must file a lawsuit within a specified period of time or be forever barred from making those claims.  There are very good reasons for statutes of limitations, and lawyers, judges, consumers have all recognized the importance of these limitations period.

First, I will provide some text from the 5th DCA opinion in Bartram that finds there is no statute of limitations and in the next post, I’ll provide text from Beauvais which finds that the statute of limitations 5 year period does apply. Confused? Good.  That means you’re paying attention.  Things are very much unclear and ultimately the Florida Supreme Court will decide. And based on their analysis in Singleton v. Greymar, I predict they will grant banks a thousand lifetimes in which to file their foreclosures. (Ain’t it good to be a gangsta?)

But here is the analysis of statute of limitations:

Ordinarily, the statute of limitations under an
installment contract starts to run on the date each payment becomes due. As such, the
statute of limitations may run on some installments and not others. Where the
installment contract contains an optional acceleration clause, the statute of limitations
may commence running earlier on payments not yet due if the holder exercises his right
to accelerate the total debt because of a default. In other words, the entire debt does
not become due on the mere default of payment; rather, it become due when the
creditor takes affirmative action to alert the debtor that he has exercised his option to

In the context of foreclosures, there exists a very real debate right now because appellate courts are re-writing these long-held principals to carve out an exemption for banks from the statute of limitations period.  The most recent expression of this exception was found in the US Bank v. Bartram opinion a tortured, twisting expression of law that continues with the disturbing pattern of courts bending and twisting law and logic in order to reward bad, bad bankers and the often incompetent conduct of their lawyers.  In short, the banks…financed and propped up as they are with billions of dollars in taxpayer support cannot get their act together, but their incompetence is being forgiven…and, according to Bartram, the 5 year period does not apply.

Based on Singleton, a default occurring after a failed foreclosure attempt creates
a new cause of action for statute of limitations purposes, even where acceleration had
been triggered and the first case was dismissed on its merits. Therefore, we conclude
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, provided the subsequent foreclosure action on the
subsequent defaults is brought within the limitations period. We therefore reverse the
judgment under review and remand this case to the trial court for further proceedings
consistent with this opinion.

Because we believe the issue we resolve is a matter of great public importance,
we certify 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

The full opinion is below:

5D12-3823 op

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