By McCalla Raymer Pierce
The Florida Supreme Court issued the much anticipated opinion in Bartram v. U.S. Bank, N.A on November 3, 2016, providing long awaited guidance as to the statute of limitations on successive mortgage foreclosure actions, post dismissal. The Court answered a very limited certified question which limited the scope of their opinion. Essentially affirming the decision of the Fifth District Court of Appeal, the Court held a lender is not barred from filing a subsequent foreclosure action based on a default after a first foreclosure action is involuntarily dismissed, provided the subsequent default occurred within five years of the new foreclosure action. This was a victory for the mortgage servicing industry and will result in the movement of foreclosure cases having otherwise been stalled, awaiting the Court’s ruling.
What can be determined from the Florida Supreme Court’s opinion?
1. A dismissed foreclosure case does not prevent suit on a separate and subsequent default.
The Bartram panel affirms the consistent findings of the Florida District Courts of Appeals that dismissal of a foreclosure case does not bar refiling of a foreclosure on the same mortgage based upon a different date of default. The FL Supreme Court found when foreclosure actions are dismissed, lenders and borrowers are returned to their pre-foreclosure complaint status, with the same continuing obligations. One exception: if the default is within 5 years and the prior dismissal was without prejudice; a suit may be brought on the same default date.
2. The type of prior dismissal, with or without prejudice is immaterial for re-filing.
Bartram follows the prevailing opinion that whether a previous foreclosure was dismissed with or without prejudice, it does not affect the lenders rights to a new foreclosure. This is because, as Bartram points out, the new foreclosure is a new cause of action, completely independent of the previous suit, as long as it is based on a subsequent default date. However, the Court limited it’s holding to cases that were involuntarily dismissed and where the subject mortgage contains language granting the borrower the right to reinstate post acceleration. The Court does make the distinction between involuntary dismissals, with and without prejudice.
3. Deceleration of the debt is not necessary.
In a handful of previous Florida District Court opinions, there was discussion that the Bank should be required to perform an overt act of deceleration, in order to allow acceleration of a new default after dismissal. The Bartram panel specifically states, “the dismissal itself – for any reason – “decelerates” the mortgage and restores the parties to their positions prior to the acceleration.” Therefore, it is not necessary to provide a notice of deceleration.
4. Where there is a new default, post-dismissal, the default date must be within 5 years of the new foreclosure.
The opinion states that, “the mortgagee, also referred to as the lender, was not precluded by the statute of limitations from filing a subsequent foreclosure action based on payment defaults occurring subsequent to the dismissal of the first foreclosure action, as long as the alleged subsequent default occurred within five years of the subsequent foreclosure action.”
5. What questions still remain about the statute of limitations as to mortgage foreclosures in Florida following this opinion?
The opinion only answers the question raised and leaves many questions unanswered. Foreclosures that are voluntarily dismissed by the mortgagee may not be covered by this holding. However, the FL Supreme Court recently accepted jurisdiction of a Second District case wherein the prior foreclosure was voluntarily dismissed, Bollettieri Resort Villas Condominium Association, Inc. v Bank of New York Mellon. This case will hopefully provide necessary guidance on this remaining issue. Undoubtedly, there be several new arguments and continued litigation regarding the proper application of this new FL Supreme Court decision.
6. How should the mortgage servicers proceed in cases where there is a potential statute of limitations issue?
Servicers should solicit opinion from Counsel as to the applicability of the ruling to the facts at issue. Counsel will review whether the prior foreclosure was involuntarily or voluntarily dismissed, with or without prejudice, the previous default date used and the filing date of the prior action. Additionally, the mortgage will be reviewed to determine whether there is a right to reinstate.
Default dates should generally be advanced so the default date is within five years of the new foreclosure action. As always, each case will need to be carefully and specifically reviewed before re-filing.
Please contact Managing Partner of FL Litigation, Jane Bond ([email protected]) or Managing Partner of FL Foreclosure, Robyn Katz ([email protected]), to further discuss the impact of this important decision.