Florida Supreme Court dismisses motion for rehearing in case concerning Florida Statute of Limitations

by K.K. MacKinstry

Last week a Manhattan court ruled in Costa v. Deutsche Bank that Deutsche Bank had failed to foreclose within the six year window and was therefore barred from collecting the debt.  In the same week, the Florida Supreme Court denied a motion for rehearing in Bartram v. U.S. Bank regarding the statute of limitations in foreclosure cases, therefore ruling that there is no statute of limitation on mortgage debt in Florida.

In the 2016 Bartram opinion the court ruled that if there is an involuntary dismissal of a foreclosure in a foreclosure case, a follow-up foreclosure action can be filed. This decision allows a lender to “correct” issues in litigation and refile until they can successfully foreclose on a homeowner and is likely unconstitutional.  Bartram ruled that a follow-up filing could be done to accelerate the debt involved in a mortgage foreclosure again and again.

The decision is an especially important one for lending institutions in Florida who fought tooth and nail for the decision.   Banks are allowed to file foreclosure even in circumstances when previous foreclosure actions have been attempted.  For exampl,e if a bank loses because they came to court with an unendorsed note, this decision tells the bank exactly what issue to cure before they file to foreclose again.  The banks have deep pockets and can file an unlimited number of lawsuits, while the homeowner will be forced to defend against foreclosure again and again until the bank can successfully foreclose.

This ruling affects all Floridians.  There is no other state in America where a bank receives a second, third, fourth, fifth or sixth time (or more) to successfully foreclose.  In theory, a homeowner could spend decades in litigation before the bank finally wears them down or bankrupts them while defending their home.

Statute of limitations are important in debt collection because people should not be pursued for decades of their lives- especially by a bank that can’t prove standing without forging and fabricating documents to “perfect” its illusion of being a holder.

This is likely a final decision and a terrible decision at that.  The Florida Supreme Court is no longer bothering to hide its bias for the banks.

A statute of limitations sets a time limit for initiating a legal claim. In the context of home foreclosure, the statute of limitations for written contracts (that is, mortgages) is usually the applicable statute or there may be a specific statute that addresses foreclosures, as is the case in New Jersey. If the foreclosure is initiated after the statute of limitations has expired, the lender’s claim is invalid and the lender is not entitled to foreclose.

Raising the Statute of Limitations as a Defense to Foreclosure

If the relevant time period for a foreclosure statute of limitations has run out, then this is an affirmative defense to foreclosure. The statute of limitations defense must be asserted by the homeowners to defeat the lender’s claim. If the homeowners do not assert the statute of limitations defense, then this defense is deemed waived. Therefore, it is extremely important for borrowers to be aware of the statute of limitations for foreclosures in their state because it could mean a quick end to a foreclosure if the time limit has expired.

On the other hand, if the statute of limitations runs out after the foreclosure process has already started, then the statute of limitations will not be a defense to the foreclosure. This means that even if a foreclosure takes years to complete and the time period under the statute of limitations covering foreclosures runs out while the foreclosure is in process, this will not prevent the foreclosure from going through. For instance, if the lender files a foreclosure lawsuit in January, 2017, but the statute of limitations runs out in June, 2017 while the foreclosure is pending, a statute of limitations defense is not available. In order to comply with a statute of limitations, the lender must simply begin the foreclosure before the time period expires.

However, in most states,  if the foreclosure is cancelled or dismissed (perhaps due to a procedural error by the lender), then the statute of limitations will still apply to any subsequent foreclosure. The lender could restart the foreclosure, but the restart would have to occur within the time period provided for in the statute of limitations. In the example above, if the foreclosure was dismissed in April, 2017, the lender would need to restart the action prior to June, 2017 to fall within the statute of limitations. It is important to note that if the borrower makes a payment in the interim, this will reset a statute of limitations in most cases.

How to Determine the Statute of Limitations in Your State

Each state has its own set of statutes of limitations. Generally, for a written contract, including mortgages, the statute of limitations will vary from three years to 15 years, though this differs from state to state with most falling within the three-to-six-year range. Most states have a statute of limitations of six years covering foreclosures.

The statute of limitations clock for a mortgage foreclosure usually starts when the default occurs–that is, when the borrowers stop making mortgage payments. It is usually calculated from the date of the last payment or from the due date of the first missed mortgage payment. Again, this depends on your state’s particular statute.  If you have the misfortune of living in Florida, every time you miss a payment, the statute of limitations begins all over again.

12 Responses

  1. We should make these unethical Judge’s names well known to the public. How do we shine a light on this illegal, biased decision ? We need to get it out there in the press. Organize a protest, March, sit in , something the press can’t ignore. All we’ve been getting is lip service from these so call defense attorneys !!

  2. Can’t the Bartram case be file with the U.S. Supreme Court. ? Also why is this ridiculous decision kept quite.? It seems as though the public at large has no idea of the bias being displayed by the F.S.C. ? Why has the media silent on this whole situation ??

  3. Can someone please answer my question:
    Can this wrong, unethical, unjust and illegal decision be appealed to the U.S. Supreme Court?
    There are conflicting decisions in New York, New Jersey and of course the all corrupt Florida Court System where even retired 70 & 80 yr. old judges were allowed to come back from retirement to enter the all famous “rocket docket” foreclosure trials just to rule in favor of the Banksters no matter what. Thus, violating Florida law since they were not elected by us, the voters. But of course, what can you expect in a State like Florida where we elect a “Medicaid” suspect like Rick Scott as governor and in turn we get Pam Bambi as Attorney General who has refused time and time again to investigate the banks and now with Trump at the helm of our nation, I have just about given up.
    Floridians including myself are a bunch of idiots who have allowed these wrong, unfair and illegal rulings become the new law in Florida.

  4. Please, let’s live in a land of laws as long as we can. Even a cursory review of the Florida and U.S. Constitutions amply articulates protection from retroactive alteration of contractual rights, ex post facto laws, denial of substantive and procedural due process, and obstruction of the essential elements of the administration of justice which support a petition for common law certiorari.

    If citizens and members of the bar do not have the initiative and integrity to actively protect the rights of the people, then why would
    God waste his valuable time protecting us from ourselves. Quoting a 21st century sage, “I live in a small world in which everyone likes me!” Ergo, if a person doesn’t like me, …he or she lives in a distant world for which I desire no passport.

    “DON’T TREAD ON ME!” is a rejuvenated call to action! Saddle up or hide you head in the sand to live in a world in which you don’t even like yourself. It is a free choice, govern yourself accordingly.

  5. In Florida the Supreme Court’s “might” is not “right”! Florida’s five year statute of limitations commences when the cause of action accrues. The standard installment notes and mortgages expressly provide that the cause of action on the entire unpaid amount accrues when (1) one or more payments are in default, (2) a 30 day notice to cure is sent the mortgagor, and (3) the cure is not made within the 30 day cure period. (The often brandished “Acceleration Provision” is surplusage because the mortgagee’s unqualified right to collect the entire unpaid amount by judicial proceedings and foreclosure is otherwise absolute.)
    Statutes written in customary and readily understood words cannot be reconstructed by the webs of deceit woven by stressed jurists seeking to satiate temporal needs reminiscent of the Big Short. If a lender does not want the entire amount to become due, it shouldn’t send the 30 day notice. Otherwise, the lender has voluntarily triggered the thirty day cure period and, most importantly, is without control to unscramble the five year egg of “all or nothing” within the five year limitation. The equitable fiction that a lender has the implied right to unilaterally reinstate the installment payments after failing to prove its right to foreclose on the entire unpaid amount resides somewhere between absurd and ludicrous.
    The quintessential question remaining unanswered is: “Are the recent usurpations of statutes and court rules by the Florida Supreme Court constitutional?” If this question is not viewed as rhetorical, then the Republic is already dead.

  6. The statute of limitations may start for one particular default in payment, however, when the lender accelerates the debt at foreclosure, the entire amount is due, and thus their are no further defaults for each additional missed installment. Also, a payment in not necessarily a decisive acceptance of the entire terms of the note and mortgage, and therefore does not act to de-accelerate the original election.

  7. Can these WRONG decision be appealed to the U.S. Supreme Court since we have conflicting decisions in every State. I’m so ashamed of these Florida judges, they’re in bed with the Banksters, robosigners and pretender lenders. The Miami Dade judges are the worst, no matter what defenses you raise, the Banksters always win.
    The 3rd.DCA is even worst.
    Our courts and government hav been taken over by the BANKSTERS.
    SHAME ON US for allowing this to happen.

  8. Rhody, unfortunately the SOL applies were the property is located.

  9. Does the statue of limitation apply to where the servicer’s business location as well. In other words, if borrowers state has 10 years of statute of limitation and the servicer’s or mortgagee’s business location has 3 years, could the borrower argues that the statute of limitation has run out for the servicer and mortgagee after three yeas. Please advice.

  10. Please advise. Did you file lawsuit solely specifying that the lender statute of limitation has ran out? Wells Fargo time has run out..its been 7 years in the state of California. Can you show me a copy of your top page of your lawsuit? or send me a link?

  11. I’ve been watching Bartram for a while since one of my claims (non judicial, CO) is SOL. The difference is, in Bartram, they keep talking about involuntary dismissal (either with or without prejudice) but in my case, from 7 years ago, the “lender” withdrew the foreclosure date because they had to, the sale hadn’t occurred in the 12 month window. (CO statute) Then I dismissed my claim, without prejudice, since it was basically a suit to vacate the sale date. Since the LENDER didn’t dismiss anything, is this a “hall pass” for me?

  12. Reblogged this on Mario Kenny.

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