Foreclosure Statute of Limitations in Florida – a question asked everyday, with a difficult answer
More and more, I am asked my legal opinion about the foreclosure statute of limitations in Florida. I’ve spoken on it, speaking on behalf of borrowers in a panel of attorneys answering this precise question. I’ve helped write on it in an amicus brief, requested by the 3rd District Court of Appeals, in Deutsche Bank Trust Co. Americas v. Beauvais, et al. (hat tip to the Florida Alliance for Consumer Protection) and am closely following the pending Supreme Court decision in Bartram. It’s causing a lot of headache for homeowners – especially those that are having a second, third, or even fourth foreclosure filed against them again. This is being done at a time when many foreclosure defense attorneys are leaving the practice, and stands to only work to the detriment of home owners.
So – what’s the answer?
Unfortunately, it depends. It depends on what the Florida Supreme Court holds in Bartram, and what the 3rd DCA holds in Beauvais. This is the threshold question for a lot of home owners. At first glance, Fla. Stat. 95.11 reads fairly clear – 5 years to foreclose on a mortgage. But now, courts are dealing with distinctions between a dismissal with prejudice and without prejudice, deceleration and the terms of the mortgage and note, etc. The banks argument is simple, despite calling the whole loan due, each installment represents a different default. At this point, with over 9,000 active foreclosure cases pending in Hillsborough County alone, the bank needs every thing on their side in an effort to foreclose on properties after being beat in court. As I’ve always said – there is no such thing as a free house in foreclosure.
What am I supposed to do? Do I Wait?
Given that the future is unclear here I am urging homeowners to speak to a attorney that actively defends foreclosure lawsuits while these cases are pending in their respective appellate court. It’s not as simple as “bank waited too long to foreclose” – each missed payment is its own default. That means a running 5 year period until 5 years after the maturity date of the mortgage.
If you are defending your second, third, or fourth foreclosure there is an even larger need to have someone that is familar with the statute of limitations argument. Each default in each case matters, the time after default to filing matters, the letters you were sent leading up to your case, etc.