Nearly a year after hearing oral argument on the matter, the Supreme Court of Florida affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., SC14-1265 (Fla. Nov. 3, 2016), holding that a lender is not barred from filing a subsequent foreclosure action based on a payment default after a first foreclosure action is involuntarily dismissed, provided that the.
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Second District Court of Appeal Declines to Apply Statute of Limitations to Bar Subsequent Foreclosure Actions Premised on Original Default and "All Subsequent Payments". Consistent with the Bartram decision, the Court’s opinion confirms that, following the dismissal of a prior foreclosure action, a mortgagee is not barred from filing a subsequent action premised on a "separate and distinct" date of default–including a borrower’s continuing state of default–under the same note and mortgage.
This action was based on Irvin’s. Defendant then motioned for dismissal for lack of subject-matter jurisdiction. Although plaintiff had filed the complaint in state court within the six-month.
The Statute Of Limitations Defense In Foreclosure Actions. The six-year statute of limitations can be a powerful bar to foreclosing on a defaulted mortgage, especially where the defaults and subsequent acceleration occurred in the immediate aftermath of the financial crisis (i.e., 2008 and 2009).
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"The statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment, or from the time the mortgagee is entitled to demand full payment, or from the date the mortgage debt has been accelerated (Plaia v Safonte, 45 AD3d 747, 748  [emphasis added]).
This period of time exceeded the one year statute of limitations. transformed the dismissal of the [petitioner’s first federal petition] without prejudice into a dismissal with prejudice by.
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Accordingly, the only remaining question is whether the refiled mortgage foreclosure action is predicated on the same underlying defaults as the dismissed action was. If so, and the applicable five-year limitations period has run, then regardless of whether the dismissal was with or without prejudice, the complainant is at the end of its road.
If the involuntary dismissal without prejudice was based on such a finding by the court, this may raise some type of equitable estoppel for the homeowner to take the inconsistent position in the second foreclosure action that there actually had been an acceleration in the first action – without a prior acceleration, there was accrual of a cause of action and the statute of limitations never began to run.
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