A court decision issued last year has serious implications for Florida homeowners. In U.S. Bank v. Bartram, decided last April, the Fifth District Court of Appeals held that each default that occurs after a failed foreclosure attempt creates a new cause of action for the lender for statute of limitations purposes. This is true even where acceleration has been triggered and the first case is dismissed for lack of merit.
For homeowners, this means that if a lender’s foreclosure action is dismissed, and five years pass, the lender can still bring another foreclosure action as long as the borrower defaulted sometime after the first action was brought. According to the Bartram decision, the statute of limitations will no longer prevent a new action from being initiated against the homeowner. This is the first time that a Florida appellate court clearly stated that each default triggers a new cause of action for foreclosure.
In Bartram, the Bank’s initial foreclosure action was involuntarily dismissed, and Bartram argued that because more than five years had passed since he had defaulted, the statute of limitations barred the Bank from now enforcing its rights under the note and mortgage. However, the appellate court concluded that, despite the amount of time that had passed since the Bank’s foreclosure action, the Bank was not prohibited from then enforcing its rights under the note and mortgage, so long as Bartram defaulted sometime after the first action was initiated.
For homeowners, Bartram unfortunately favors lenders and will not allow homeowners to breath easy, even after seemingly fighting off a foreclosure. It appears that this decision will result in lender’s continuing to pursue homeowners for debt owed, even after the homeowner successfully eludes an unfavorable foreclosure judgment. Further, this decision will likely speed up many outstanding foreclosure cases in Florida, where the statute of limitations is at issue.
If you have defaulted on a payment to a lender and are concerned about foreclosure, it is more important than ever to have a qualified attorney on your side. Even when you think you are free from foreclosure, lenders can continue to pursue your home if you default again. Do not try to attempt to save your home single handedly; an experienced attorney will be able to create a unique plan for your case and can guide you in handling your lender’s demands.
Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.
The opinions in this post are solely those of the author. The author takes full responsibility for the content. Like all blog posts, this is offered for general information purposes and does not constitute legal advice.