Mortgage Foreclosure Action Barred by Statute of Limitations Based On Prior Involuntary Dismissal Without Prejudice

The Court ultimately held that where a mortgagee’s prior foreclosure action was dismissed with prejudice, its subsequent foreclosure case is not barred by the statute of limitations so long as (1) the newly alleged default date post-dates the dismissal of the first action and (2) the subsequent lawsuit is filed within five years of the newly alleged default date.

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The mortgage industry scored a significant victory last week when the Florida Supreme Court released its decision in Bartram v. U.S. Bank, N.A. broadly approving of the approach taken by the Fifth District Court of Appeal and other courts in addressing the application of the statute of limitations in the context of an action for foreclosure.

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If the involuntary dismissal without prejudice was based on such a finding by the court, this may raise some type of equitable estoppel for the homeowner to take the inconsistent position in the second foreclosure action that there actually had been an acceleration in the first action – without a prior acceleration, there was accrual of a cause of action and the statute of limitations never began to run.

"When a mortgage foreclosure action is involuntarily dismissed pursuant to Rule 1.420(b), either with or without prejudice, the effect of the involuntary dismissal is revocation of the acceleration, which then reinstates the mortgagor’s right to continue to make payments on the note and the right of the mortgagee, to seek acceleration and foreclosure based on the mortgagor’s subsequent defaults.

In Florida the statute of limitations on a mortgage foreclosure is five years from the date of default. Because each missed payment can be a new default under the current state of the law in Florida, the action would not be barred by the Florida statute of limitations unless more than five years has passed using the default date that the mortgage holder is relying on in the complaint.

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Therefore, we conclude that a foreclosure action for default in payments after the order of dismissal in the first foreclosure action is not barred by the statute of limitations . . . provided the subsequent foreclosure action on the subsequent defaults is brought within the limitations period. Bartram, 140 So. 3d at 1013-14. In its opinion.