FL 5th DCA allows foreclosure to escape statute of limitations

This US Bank v Bartram appellate opinion really displeased Florida’s foreclosure pretender defender legal community. The 5th DCA reversed the trial court’s opinion that the statute of limitations bars the bank from foreclosing after tolling on a prior part of the loan. It doesn’t and it shouldn’t. The court explained by reminding everyone of Singleton, 882 So. 2d at 1006):

“We must also remember that foreclosure is an equitable remedy and there may be some tension between a court’s authority to adjudicate the equities and the legal doctrine of res judicata. The ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent mortgagees from being able to challenge multiple defaults on a mortgage. See deCancino v. Eastern Airlines, Inc., 283 So. 2d 97, 98 (Fla. 1973) (“[T]he doctrine [of res judicata] will not be invoked where it will work an injustice . . . .”). We can find no valid basis for barring mortgagees from challenging subsequent defaults on a mortgage and note solely because they did not prevail in a previous attempted foreclosure based upon a separate alleged default.

“We conclude that the doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit. In this case the subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action. Thus, we approve the Fourth District’s decision in Singleton, and disapprove of the Second District’s holding in Stadler. ”

“Because we believe the issue we resolve is a matter of great public importance, we certify the following question to the Florida Supreme Court:

“Does acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, trigger application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on all payment defaults occurring subsequent to dismissal of the first foreclosure suit?”

US Bank v Bartram FL 5dca 2014 5D12-3823 op.pdf


Author: bobhurt

See http://bobhurt.com

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