July 21, 2014

U.S. v. Bartram Dashes Hopes of Florida Homeowners Fighting Foreclosure

A recent Florida appellate court ruling in U.S. v. Bartram spelled bad news for Florida homeowners fighting foreclosure hoping a state statute might prevent banks from continuing to pursue a foreclosure action past the five-year mark, per the statute of limitations indicated in Florida Statutes, § 95.11 (2) (c).

This law indicates there is a five-year statute of limitations on action to foreclose a mortgage. But Miami foreclosure defense lawyers understand the question was when that statute of limitations begins ticking.

Homeowner FamilyIn Bartram, the plaintiff alleged that it started when the bank first filed a foreclosure action against him in 2006. The case was dismissed in 2011, and the bank chose not to seek a rehearing or appeal of that order. When the bank again filed for foreclosure, the plaintiff asserted that the bank’s right to enforce its claim was barred by the statute of limitations.

However, the bank countered that dismissal of the prior case effectively allowed it to reset the clock on its ability to file a new lawsuit. Put another way, losing the case the first time gave the bank an additional five years in which to file a new lawsuit. If that lawsuit were to be dismissed, the bank would have another five years to bring an additional lawsuit.

This type of unlimited re-filing of old cases that have already been dismissed seems ludicrous, particularly given the fact that Florida courts are clogged with a backlog of old cases. It seems that allowing such action, with essentially no limits as to how many times a bank can file, or the time in which the filing must be accomplished, would create an undue burden on the courts (to say nothing of struggling homeowners).

And yet, that was the decision reached by the Fifth District Court of Appeal in Bartram.

There is a possibility that the decision could be reversed, however, as the appellate court has certified it to the Florida Supreme Court for review. The high court could choose to affirm the ruling, or toss it, tossed or ultimately find some middle ground.

At this point, both parties have the opportunity to provide the high court with more documentation to offer further argument for review.

This decision is particularly important for homeowners who have already had their prior foreclosures dismissed. Many believed they were safely beyond that five-year mark, because of the statute of limitations under Florida law.

However, even if the decision stands it doesn’t necessarily mean homeowners are out-of-luck. For one thing, application of this opinion might be rather limited, and there are other statutes that may provide relief.

Additionally, there is a portion of the language in this ruling that indicates that even when a bank files a new foreclosure lawsuit, it can’t recovery individual payments that are overdue by more than five years.

Given the evolving landscape of foreclosure law in Florida, it’s imperative that homeowners seek counsel from an experienced lawyer.

The Neustein Law Group PA, Miami foreclosure attorneys, can be reached at (305) 531-2525.