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Foreclosures to Increase in Florida?

On November 3, 2016, the Florida Supreme Court issued a decision that may increase the number of foreclosures filed in the State of Florida, when it issued its decision in Bartram v. U.S. Bank National Association. The Court held that Florida's five-year statute of limitations applies to payments that are more than five years past due, but does not prevent the bank from filing a second foreclosure lawsuit more than five years after the first missed payment. Given the Court's ruling, cases that were dismissed on technicalities may soon be refiled against Florida homeowners.

Based upon a conflict in decisions from different courts in the State of Florida, the Supreme Court answered the following question in the negative:

Does acceleration of payments due under a residential note and mortgage with a reinstatement provision 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 payment default occurring subsequent to dismissal of the first foreclosure suit?

Mr. Bartram obtained a 30-year mortgage against his home on February 16, 2005, which matured in 2035. Almost a year later, on January 1, 2006, Mr. Bartram stopped making payments on his mortgage. In May the bank filed its first foreclosure action and nearly five years later, on May 5, 2011, the bank dismissed its foreclosure case. In 2012, Bartram filed a claim to cancel his mortgage, in a foreclosure action brought by second position lender (which he was also not paying) more than six years after the payment default on the first mortgage (and almost one year beyond the 5 year statute of limitations). In addition, Bartram made no payments, nor any effort to make payments, subsequent to the dismissal of the first foreclosure lawsuit.

The Court analyzed Florida Statute 95.11(2)(c), which requires that the bank file a foreclosure lawsuit within five years. The Court then looked to the effect of an involuntary dismissal under Rule 1.420(b), which generally operates as an adjudication on the merits (rather than a dismissal for technical reasons). Accordingly, the effect of an involuntary dismissal under Rule 1.420(b) carried no determination that there was an actual default in payments, and revoked the acceleration of the loan by the bank. The bank also recognized that the first mortgage allowed Bartram to reinstate the loan, and that each month that passed created a new breach under the Note and Mortgage.

Accordingly, the Court ruled that any payments due to the first mortgage company that were more than five years delinquent were uncollectible as beyond the applicable five-year statute of limitations. However, because each month is a new payment default, because the loan itself matured in 2035, and because Mr. Bartram made no efforts to make payments subsequent to when the first mortgage was dismissed, that the bank could foreclose for those payments that were missed within the past five years.

Unfortunately, with this ruling, using a statute of limitations argument to obtain a free house is unavailable under Florida law. In addition, many in the industry now believe banks will revive former Foreclosures previously dismissed for technicalities, just with an updated default date, to be within 5 years of the filing date. In fact, we have one such case in our office now!

For more information on foreclosure law, please subscribe to the Yesner Law Podcast, on iTunes and Stitcher. If you prefer, please contact us to schedule a free initial consultation to discuss your options at 813-774-5737 or email me directly at

Shawn M. Yesner, Esq., is the founder of Yesner Law, P.L., a Tampa-based boutique real estate and consumer law firm that helps clients eliminate debt by providing options, so they can live the lifestyle of their dreams. We assist clients with foreclosure defense, asset protection, the sale and purchase of real property, Chapter 7 liquidation, Chapter 13 reorganization, bankruptcy, debt settlement, landlord/tenant issues, short sales, and loan modifications in Tampa, Westchase, Odessa, Oldsmar, Palm Harbor, Clearwater, Pinellas Park, Largo, St. Petersburg, and throughout the greater Tampa Bay area.

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