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The Bank filed a second Foreclosure lawsuit on a case you thought went away, what next?

A Second Foreclosure Lawsuit after a Bank has dismissed, or lost, a previous case can have a lot of defenses for an attorney to bring on your behalf!

In recent news, a lot of news outlets have finally gotten wind how unfriendly the Florida foreclosure courts really are. From judges telling home owners to “pack their bags” to banks trying to get foreclosure judgments without a proper Note or Mortgage, a lot of Foreclosure Defense attorneys, including myself, are fighting  a very difficult fight to find a proper foreclosure alternative for each client or to win at trial. A very recent case has found that if you accomplish the later, i.e., win your case or the judge dismisses it, you may be facing a second foreclosure lawsuit all over again. See, for example, U.S. Bank Nat’l Ass’n v. Bartram, No. 5D12-3823. This case allows each months payment to become its own default, with its own five year statute of limitations. If you were successful in defending the first suit, the second lawsuit could be based on the very next missed payment. This is very technical circumstance when you are dealing with a bank bringing a lawsuit outside of the statute of limitations, so meeting with an attorney regarding it is highly advisable. 

How will this affect you if your case is already dismissed by a judge?

If your case was dismissed, or if you won on a defensive motion, if you did not resume making your monthly payments, that very next month could be considered the default in that second foreclosure lawsuit. If this happens, you may start the nightmare of foreclosure all over again. This can happen if the judge threw your first foreclosure lawsuit out, you or an attorney were successful in getting the bank’s foreclosure case dismissed at a trial, or if you won on a defensive motion for summary judgment. If this was the case and you didn’t resume making payments, you could be facing a second foreclosure lawsuit for the first missed payment after the final order dismissing the case was entered.

How will this affect you if the bank dismissed your foreclosure case and you never heard from them again?

Well, depending on how it was dismissed the bank may be barred from bringing another action on the same default (missed payment) that the first suit was based on. The Bartram case, and cases like it, allow the bank to then go after you for another missed payment, and in effect, restart the clock  so long as there is another missed payment. This can be extremely frustrating, especially when you think you have put that matter behind you.

What you can do

There is a silver lining if you have been served again in a second foreclosure lawsuit as it requires the bank to completely start the new foreclosure over again. This means all the information from the first suit needs to be updated. If a bank brings a suit saying there is a new default, it has to actually tell you what that default was, and what the correct amount needed to fix it may be. Contacting an attorney from the start may potentially save some defenses to properly litigate the case.

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