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

On appeal, the florida supreme court held that the statute of limitations did not bar the Trustee from pursuing a second foreclosure: 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

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.

The Court explained that a lender is not precluded by the statute of limitations from filing a subsequent foreclosure action after the involuntary dismissal (with or without prejudice) of the first foreclosure action if the alleged subsequent default occurred within five years of the subsequent foreclosure action.

Under Florida law, the involuntary dismissal without prejudice of an initial foreclosure action did not "decelerate" lender’s acceleration of the debt in the initial action and the statute of limitations continued to run, barring a second action brought after the expiration of the statute of limitations.

Currently, the Florida Supreme Court is considering whether a subsequent foreclosure action can be barred by the statute of limitations when the initial action is dismissed with prejudice. See Bartram v. U.S. Bank Nat’l Ass’n., etc., et al., Consolidated Case Nos. SC14-1265, SC14-1266, and SC14-1305.

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Deutsche Bank Natl. Trust Co. Ams. v Bernal – 2017 NY Slip Op 27182. prior acceleration of the underlying debt so as to avoid application of the statute of limitations. This Court holds that, under the circumstances presented, the mortgagee did not do so and the present action is time barred.

Residential Mortgage Servicing and Foreclosure Challenges in an Evolving. after the order of dismissal in the first foreclosure action is not barred by the statute of limitations found in section 95.11(2)(c), regardless of whether prior dismissal was with or without prejudice.

Quiet Title and Statute of Limitations in Foreclosure 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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