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Mortgage Foreclosure: Statute of Limitations—Acceleration of Loans

By gedlaw50486353, Feb 19 2016 05:16PM

The First District Court of Appeal of Florida (“1st DCA”) recently reversed a trial court’s ruling that a foreclosure action was barred by the statute of limitations.

The homeowner in this case first defaulted on their mortgage in February 2007. The lender sent the homeowner notice of intent to accelerate the note in April 2007 and later filed a foreclosure action, however, the suit was dismissed without prejudice due to the lender’s failure to appear in court. The lender sent the homeowner another acceleration letter in November 2010 based on a default from March 2007 and subsequent breaches. The homeowner took no action to cure the default and another foreclosure action was filed in November 2012. The homeowner asserted an affirmative defense based on the statute of limitations stating that the action was barred pursuant to F.S. § 95.11(2)(c), because the action was not filed within 5 years of the original acceleration of the note in 2007.

In Singleton v. Greymar Associates, 882 So.2d 1004( Fla. 2004), the Florida Supreme Court discussed the nature of mortgage obligations between the parties and the continued obligations which arise by virtue of that relationship. In Singleton, the Court held that each subsequent default by a homeowner creates an independent right in the lender to accelerate on the note and bring a foreclosure action. Id. at 1008. The Court based its holding on the underlying principles that a homeowner who defaults should not be unjustly enriched and the lender should be able to avoid obstacles which bar them from challenging subsequent defaults. Id. at 1007-08.

In this case, the Court found that the trial court’s judgment ran contrary to Singleton because the defaulting borrowers were being released from their entire indebtedness and it kept the lender from collecting on any of the total debt. The Court held that the lender’s 2012 foreclosure action, based on breaching occurring after the original complaint, were not barred by the statute of limitations. If you are a homeowner who is facing a foreclosure, it is highly recommended that you seek the advice of an experienced real estate attorney.

See Nationstar Mortg., LLC v. Brown, 175 So. 3d 833, (Fla. 1st DCA, 2015). (pf)

Click here to read full opinion.

The information you obtain through this article is not, nor is it intended to be, legal advice. This article intended to provide general legal updates. Information is current only as of the date indicated. Changes occur frequently and often the laws and statutes are complex and/or are difficult to follow and therefore we cannot be held responsible for any errors or misstatements or for any misunderstanding on your part. Thus, you are cautioned to use this information at your own risk. You should consult an attorney for advice regarding your individual situation. The proper answers to your legal problems will turn on your particular circumstances and thus you need to have competent legal advice tailored to those circumstances. Consult a lawyer if you have a legal matter which needs attention. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered. This article is not intended to be advertising and David S. Ged, PA does not wish to represent anyone based solely upon the reading/viewing of this article.

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