What does the acceleration of Florida's five year statute of limitations mean? It means that the plaintiff within 5 years after the mortgage loan goes into default is the time that they can sue for foreclosure. But let's say that the court dismisses the action without prejudice. The plaintiff can then pick a more recent breach date (time that loan is in default) and restart the limitation clock. Only if the plaintiff does not file a new action within 5 years of the most recent breach will the Statute of Limitations prohibits the court from hearing the case. However, the 3rd District Court of Appeal in Florida has, since January 2015 a unique yet narrow interpretation stemming from the ruling in Deutsche Bank Trust Company Americas, v. Harry Beauvais, et al., No. 3D14-575 where it deems basically that a dismissal with prejudice merely resets the clock. Please note that there are 5 District Court of Appeals in Florida. Therefore, the jurisdiction your home is in is also a factor.
It is important to know that:
- Acceleration is a term in a loan agreement that requires the borrower to pay off the loan immediately under certain conditions.
- The five year Florida statute of limitations period begins when the lender files its first action.
- Only valid mortgage notes can go into foreclosure.
- Only a dismissal with prejudice stops the clock for purposes of the Statute of Limitations.
Therefore with that being said If you face foreclosure in Florida, you need to make sure your Florida foreclosure defense attorney examines the mortgage for evidence of injuries from mortgage lender and not just fight the foreclosure. Proving that injuries such as those listed in next paragraph means they can prove that the lender does not hold a valid assignment of mortgage note. As a result would be unable to move forward with foreclosure. Not looking closely can leave injuries undiscovered while you lose your home.
The causes of action/injuries that can be held against the lender or its agents (appraiser, mortgage broker, servicer, and/or title company) are:
- Torts - A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortuous act, called a tortfeasor. Example - A fraudulent appraisal where the appraiser inflates the actual worth of property.
- Breaches - Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance. Example - Not showing good faith and fair dealing.
- Legal Errors - A mistake in a court proceeding concerning a Matter of Law or fact, which might provide a ground for a review of the judgment rendered in the proceeding. Example - The court errs and awards something that was unsupported and as a result denies due process.
Did you know that most foreclosure victims have suffered real injuries at the origination of the loan? Numerous causes of action can be found in most mortgage loans and especially those of the past 15 years.
If you suspect that any of the above reasons could be found in your mortgage loan and you are facing foreclosure fight back and hire a competent lawyer to:
- Review your mortgage find possible injuries.
- Negotiate a loan modification settlement.
- Or One that will sue via complaint, counter complaint, cross complaint as necessary on your behalf.
Have more questions?
