We get a lot of questions about Florida's statute of limitations for a mortgage foreclosure action. Many folks who are in mortgage foreclosure and have a potential statute of limitations defense want to know how it works and whether it applies to them.
There is an important case currently pending before the Florida Supreme Court on this issue. The case is US Bank, N.A. v. Bartram and the Fifth District Court of Appeal's opinion can be found here. This is the opinion currently under review by the Florida Supreme Court. As a general matter, foreclosure defense attorneys such as myself argue that the bank only has 5 years after the bank accelerates on the note and mortgage (calls in the full amount due - usually by suing you in foreclosure) to file its foreclosure action. However, the banks and their counsel argue that even if their first foreclosure case is dismissed and more than 5 years have passed since acceleration, that they should simply be able to allege a new default date in their second suit and foreclose. The logic they attempt to employ is that a new default is a new cause of action. This would essentially allow the bank to continue to sue you until they finally prevail and obtain a Final Judgment of Foreclosure. This important case is currently scheduled for oral argument in November of this year.
Until we hear from the Florida Supreme Court on this issue, for our part of the state the decisions of the Second District Court of Appeal govern. In a recent case of ours in Pinellas County, Florida, we successfully argued that the foreclosure case was time-barred under Florida's 5 year statute of limitations, codified in Section 95.11(2)(c), Florida Statutes. Our argument was that under Houck Corp. v. New River, Ltd., 900 So. 2d 601, 603 (Fla. 2d DCA 2005) and USX Corp. v. Schilbe, 535 So. 2d 719 (Fla. 2d DCA 1989), the bank has 5 years from the date of acceleration to file its foreclosure action. In our case, the bank had waited more than 5 years past the acceleration date, and the Court agreed that the foreclosure was time-barred, granted our Motion for Summary Judgment, and entered a Final Judgment in favor of our client. Until the Florida Supreme Court renders its ruling in Bartram, the above-cited cases are controlling on the trial courts within the territorial jurisdiction of the Second District Court of Appeal.
If you have any questions about whether the statute of limitations defense may apply to your case, please feel free to give us a call at 813-260-4883.
Ryan C. Torrens, Esq.