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.

In 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.

Appellate courts in Florida recently reversed a number of foreclosure actions on the grounds that the bank offered inadequate notice of default to borrowers, and thereby failed to provide them with adequate time to remedy the situation before proceeding with Florida foreclosure dismissals.

Our Miami foreclosure attorneys know in recent years Florida courts have grown increasingly strict when it comes to procedural requirements that must be met by banks, whether that is physical possession of the mortgage and note or simply adhering to statutory timelines.

Increasingly, failure of banks to provide proper notice of default is cited as a reason for dismissal of the case. We understand that while this may not permanently shut down the foreclosure process if the borrower is delinquent, it can serve to buy time because it may force the bank to refile. This gives the borrower some leverage in negotiating a reasonable home-loan modification.

One example of a recent case involving this issue is that of Haberl v. 21^st Mortgage Corp., reviewed by Florida’s Fifth District Court of Appeal.

Here, the borrower appealed a summary final judgment in favor of the bank, arguing the notice of default attached to the affidavit in support of the summary judgment didn’t comply with pre-acceleration notice requirements spelled out in the mortgage. This is the portion of the mortgage agreement that allows the bank to speed up the amount of time under which full payment is due. It’s a precursor to most foreclosure actions, but borrowers have to be provided with ample notice. Usually, the deadlines are spelled out in the contract. However, it appears too often that banks aren’t reading their own fine print.

The notice of default in the Haberl case did not include information on the borrower’s right to reinstate after acceleration or the right to assert the non-existence of default (or other defenses) in the foreclosure proceeding.

The Fifth District had just reached a similar conclusion in Samaroo v. Wells Fargo in March.

More recently, Florida’s Fourth District Court of Appeal ruled similarly in Patel v. Aurora Loan Services LLC. Here, the borrowers successfully harkened back to the 2009 ruling in Frost v. Regions Bank, where the bank failed to refute the defendant’s affirmative defense of lack of notice and opportunity to cure. Essentially, the bank failed to properly notify the borrower of the impending foreclosure action and potential remedies he or she might seek to abate it.

The appellate court determined the pertinent language in the two cases was nearly identical. A similar reversal was granted in the 2013 case of Kurian v. Wells Fargo.

The court chided the bank for its approach, noting that in response to the borrower’s assertions the bank provided defendants with a letter of default dated in 2009. “Therefore, the plaintiff denies this affirmative defense, and demands strict proof thereof.” The court indicated that this “bare, ‘because I said so’ allegation” was the extent to which the plaintiff sought to refute the borrower’s affirmative defense. In fact, the alleged default letter was never submitted to the appellate court.

Based on this, the court determined the bank hadn’t sufficiently established that there was no genuine issue of material fact regarding its lack of adequate notice and borrower opportunity to cure. Therefore, the final judgment in favor of the bank was reversed and remanded.

Foreclosure cases are often more complex than they appear. An experienced foreclosure lawyer can help you determine the best strategy to fight back.

The Neustein Law Group PA, Miami foreclosure attorneys, can be reached at (305) 531-2545.

Banks that seek to foreclose on a property must give homeowners proper notice of default before initiating and concluding the foreclosure process.

In the recent case of Samaroo v. Wells Fargo Bank, the Fifth District Court of Appeal of Florida ruled that a bank failed to give a notice of default that complied with the mortgage contract.

Experienced Miami foreclosure lawyers know that an acceleration clause grants the lender the right to assert the entire loan balance is due immediately. The original schedule of payments is therefore accelerated. So for example, let’s say you have a 30-year loan at a fixed interest rate that structures your payments in such a way that allows for pay off in 30 years. Five years into the loan, you can’t keep up with the payments and default. The acceleration clause allows the lender to declare that your remaining mortgage balance, due previously over the course of the next 25 years, is suddenly due right away.

The reason this clause is important to lenders is that, without it, borrowers could cure a default and stop a foreclosure by simply paying the past due amount.

So most mortgage servicers have an acceleration clause – but they have to provide homeowners proper notice before they initiate it.

In the Samaroo case, the court found that the bank did not comply.

Initially, the trial court granted the bank’s motion for summary judgment foreclosure. However, the homeowners appealed this ruling with a host of defenses. The court rejected all but one: the failure to abide by the notice requirements as set forth in the mortgage contract.

According to the mortgage, the bank was required to issue an acceleration notice that would specify the default, the action required to cure the default, a specific date by which the default was to be cured and notice that failure to cure the default by that date would or could result in acceleration of the loan. The bank did not do this, the homeowners contended. The notice was also required to notify the borrower that they have the right to defend the foreclosure action.

Wells Fargo refuted the homeowners’ assertion by pointing to a default letter it submitted prior to the foreclosure action. But the Fifth Circuit panel determined that the letter was clearly not in compliance with the notice requirements spelled out in the contract.

Specifically, the letter did not inform the homeowners of their reinstatement rights following acceleration. Instead, it tells the borrowers that the bank’s acceptance of one or more payments for less than the amount required wasn’t sufficient to reinstate their loan or waive acceleration. The court ruled this statement doesn’t serve to notify borrowers have a right to reinstate after the acceleration.

The bank then argued it had substantially complied with the contractual notice requirements. However, the court rejected this argument. Instead, the court ruled, the bank had “simply failed” in its duty to submit proper notice. Therefore, the summary judgment in favor of the bank was reversed and the case was remanded back to the lower court.

A few years ago, little if any challenge was raised on the issue of who had the right to foreclose on a property. The lender would simply show evidence that the borrower had defaulted on the mortgage and take possession of the property.

That kind of straightforward process can no longer be counted on in the wake of the housing crisis, which revealed years’ worth of sloppy documentation and title and document transfers by lenders and mortgage servicers.

Miami foreclosure lawyers know that without a clear title, the lender can’t legally foreclose on a property. In lien-theory states like Florida, banks must prove ownership of the mortgage note and/or servicing rights.

In fact, a recent foreclosure lawsuit made headlines when it presented documentation of systematic documentation fabrication by Wells Fargo in cases where a clear title couldn’t be found.

Then even more recently in a foreclosure case out of Montana, the banks wrangled with one another about which entity had rights to the title. In that case, JAS, Inc. v. Eisele, one bank issued a quiet title action against other lenders and mortgage servicers, all of whom staked a claim on one foreclosed property.

It started in May 2011, when IndyMac Bank foreclosed on a residential property in Billings. A sale was scheduled, but then later canceled and rescheduled, though a second affidavit of selling wasn’t recorded on or before the date of the actual sale, which was conducted in November 2011.

JAS Inc., an investment firm specializing in buying and flipping homes, purchased the property at that time.

Soon after, there were indications that the title may not have been clear. Bank of America was requesting winterization and structural assessments on the property. In response, JAS initiated a quiet title action in county court. This is an action taken in order to establish an individual or company’s right to ownership of real property against other claimants. Several others were listed, including Countrywide Home Loans and Mortgage Electronic Registration Systems. Bank of America, which had bought Countrywide back in 2008, was not listed anywhere in the proceedings.

A final judgment was later issued to JAS, granting property rights.

However, soon after, Countrywide and MERS requested to have the judgments against them set aside. Bank of America intervened on behalf of Countrywide and also sought to have the judgment against its subsidiary set aside. The district court held a hearing and granted those motions. JAS appealed. The Montana Supreme Court, however, affirmed.

Bank of America had rights to the properly that it did not have the opportunity to adequately defend, as it was not named as a defendant in the quiet title process, the court found. As an actual party of interest, the state high court found that the district court’s decision to set aside the default judgment was not improper.

The bottom line for homeowners is that foreclosure cases can be incredibly complex – more so than they might seem on the surface. This case serves not only as a cautionary tale for those who are looking at purchasing a foreclosed home, but also for those who are entering foreclosure.

A lender that is unable to prove standing will not be able to foreclose on the property. An experienced foreclosure defense lawyer can help borrowers explore the options based on the individual facts of the case.

For more information on fighting a Miami foreclosure, contact The Neustein Law Group PA at (305) 531-2545.