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Lenders May Refile Foreclosure Cases Against Owners Still In Default

Based on a simple reading of Fla. Stat. § 95.11, one might think that a foreclosure action must be brought within five years of default. However, after the holding of the Supreme Court of Florida in Bartram v. U.S. Bank, N.A., SC14-1265 (Fla. Nov. 3, 2016), this apparently is not the case, much to the chagrin of homeowners everywhere throughout the state of Florida. Lenders in numerous Florida cases have contended that each month a payment is missed is a new default date, thus the statute of limitations is reset and starts to run from the beginning. Apparently, the Florida Supreme Court now agrees with them to some extent.

Fla. Stat. § 95.11 provides that the five-year statute of limitations on a foreclosure action begins to run from the date of default, which is defined as the date of last payment. This five-year period runs continuously unless the homeowner makes additional payments or files for bankruptcy, which temporarily suspends or tolls the running of the statute. Once the five-year period runs from the date of default without interruption, the mortgagee or lender may not bring a foreclosure lawsuit against the homeowner.

Finally, the Supreme Court of Florida resolved the issue in November of 2016, affirming the decision of the Fifth District Court of Appeal in the Bartram case. The Supreme Court held that a lender is not barred by Fla. Stat. § 95.11 from filing a subsequent foreclosure action based on a payment default after the involuntary dismissal of a first foreclosure action, as long as the subsequent default occurred within five years of the newly-filed action.

While this holding is not good news for Florida homeowners, it was limited to cases that were involuntarily dismissed and where the mortgage at issue contains a clause granting the mortgagor the right to reinstate the loan after acceleration. The Bartram decision means that Florida homeowners will likely face a multitude of new, immediate foreclosure actions on any loans in default if there was an involuntarily dismissed prior to the foreclosure action, and the terms of the mortgage include provisions that allow reinstatement of the loan after acceleration.

Homeowners need sufficient time to address financial problems. Timely action by a foreclosure defense attorney may help homeowners find such time and opportunity. At Loan Lawyers, our South Florida consumer rights and debt defense attorneys help individuals with problems related to the payment of their mortgage. If you are facing foreclosure and require assistance with this and loss mitigation, contact our office today by calling (888) FIGHT-13 (344-4813) and see how we can help.

  • ABC News
  • American Civil Liberties Union
  • CBS 4
  • CNN
  • Daily Business Review
  • Florida Trend's - Florida Legal Elite 2014
  • Florida Trend's - Florida Legal Elite 2014
  • National Association of Consumer Advocates
  • National Association of Consumer Bankruptcy Attorneys
  • NBC News
  • National Consumer Law Center
  • The New York Times
  • Avvo
  • Avvo
  • Avvo
  • Avvo
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