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The Recent Landmark Decision By the Florida Supreme Court – How Does It Affect My Foreclosure?
November 21, 2016
In November 2016, the Florida Supreme Court decided the case of Bartram v. U.S. Bank National Association. The decision is not good for homeowners facing foreclosure. Here is what you need to know about the case:
The main question that the Florida Supreme Court had to answer was whether the five-year statute of limitations applied to a foreclosure case. A statute of limitations is the time frame in which a bank has to bring a foreclosure lawsuit against you.
In this case, Mr. Lewis Bartram stopped making payments on his mortgage and note in January 2006. In May 2006, the bank filed a foreclosure case for Mr. Bartram’s failure to make payments. The first foreclosure case was dismissed in May 2011 when the bank failed to appear at a court hearing. Mr. Bartram, knowing that the five-year statute of limitations had expired (January 2006 – January 2011), filed a motion to cancel the promissory note and release the lien from the mortgage. The court denied Mr. Bartram’s motion because the foreclosure case was dismissed and the court considered the case closed.
Then, there was a second foreclosure case. Now, six years after the first foreclosure complaint, the bank filed a second foreclosure case. Mr. Bartram again tried to cancel the promissory note and release the lien from the mortgage. The court agreed with him and found that the bank was unable to enforce its’ rights under the note and mortgage six years later.
The bank appealed to the Fifth District Court of Appeal. The bank relied on the case of Singleton v. Greymar Associates, which said that a default occurs on every single missed payment. (emphasis added) The Fifth District agreed with the bank and stated that each new default would allow a new foreclosure case.
The Florida Supreme Court explained how they made their decision in Bartram. After the dismissal of a foreclosure case, the parties (the homeowner and the bank) are placed back in the same contractual relationship as they were before the foreclosure. The mortgage remains an installment loan. The acceleration of any payments are revoked. The Court decided that the dismissal of the first foreclosure case had no real purpose. The Court found that a bank could bring another foreclosure case based on the same default, as long as the next foreclosure case was brought within five years of the default. The Court decided that the bank was not barred by the statute of limitations for future foreclosure cases based on separate defaults.
I am a homeowner. What does this mean for me? The decision in Bartram means that homeowners can no longer wait out their cases in hopes to cancel a promissory note and mortgage. The Florida Supreme Court’s decision means that each payment you miss is a new default and the bank can bring a foreclosure case based on your missed payment in August 2014, February 2015, June 2016, or any month thereafter. In the end, this means that it will be nearly impossible to use the statute of limitations as a defense in your foreclosure case.
Foreclosure cases can be complicated. You may have some other defenses to fight your lawsuit. If your bank sues you for foreclosure, speak with an experienced foreclosure attorney to understand your rights and determine what options you may have.
If you have questions regarding your specific case, call us today for a consultation.
Kristina E. Feher lives in St. Petersburg, Florida and is an associate with the Law Office of Robert Eckard & Associates. Kristina’s practice areas include family law and domestic violence petitions, in addition to bankruptcy, business litigation, and immigration.
The Law Office of Robert Eckard & Associates (LORE) has not been retained for any matter by you until such time as a duly executed retainer is signed by you and an authorized agent of LORE and any retainer deposit paid and returned to us. Nothing contained herein is intended to create an attorney client relationship or be considered legal advice, as such, no conflict of interest shall be presumed in the event LORE is later retained by an adverse party. See Rule 4-1.18 et. al., 2006 Florida Supreme Court.