Mortgage Foreclosure Action Barred by Statute of Limitations Based On Prior Involuntary Dismissal Without Prejudice

Currently, the Florida Supreme Court is considering whether a subsequent foreclosure action can be barred by the statute of limitations when the initial action is dismissed with prejudice.

Accordingly, the only remaining question is whether the refiled mortgage foreclosure action is predicated on the same underlying defaults as the dismissed action was. If so, and the applicable five-year limitations period has run, then regardless of whether the dismissal was with or without prejudice, the complainant is at the end of its road.

In Singleton, the Florida Supreme Court held that an involuntary dismissal with prejudice of a mortgage foreclosure action did not preclude by res judicata a later foreclosure action based on a subsequent default involving the same note and mortgage.

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The opinion states, "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" [emphasis added].

Nearly a year after hearing oral argument on the matter, the Supreme Court of Florida affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., SC14-1265 (Fla. Nov. 3, 2016), holding that a lender is not barred from filing a subsequent foreclosure action based on a payment default after a first foreclosure action is involuntarily dismissed, provided that the.

Florida Supreme court issues landmark ruling on Statute of Limitations for Foreclosure: Bartram Affirmed.. years and the prior dismissal was without prejudice, may suit be brought again on the.

The issue addressed in Bartram was whether, when an initial mortgage foreclosure action has been dismissed, and more than five years have passed since action was filed, the lender is barred by the statute of limitations from filing a new foreclosure action against the borrower.

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After the dismissal without prejudice, the parties returned to the status quo that existed prior to the filing of the dismissed complaint. As a matter of law, appellant’s 2012 foreclosure action, based on breaches that occurred after the breach that triggered the first complaint, was not barred by the statute of limitations.