· The First District Court of Appeal (1st DCA) recently held that the statute of limitations does not bar a second mortgage foreclosure action based on a subsequent default, regardless of whether the first case was dismissed with or without prejudice. The 1st DCA sided with the Bartram view upon on appeal currently to the Florida Supreme Court, and rejected the 3rd dca beauvais opinion.
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.
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.
The Statute Of Limitations Defense In Foreclosure Actions. The statute of limitations on a mortgage foreclosure action is governed by CPLR 213(4), which provides that the action must be.
Mortgage Foreclosure Action Barred by Statute of Limitations Based On Prior Involuntary Dismissal Without Prejudice (fl) 09 jan, 2015 Print this article Font size – 16 +
Deutsche Bank Natl. Trust Co. Ams. v Bernal – 2017 NY Slip Op 27182. prior acceleration of the underlying debt so as to avoid application of the statute of limitations. This Court holds that, under the circumstances presented, the mortgagee did not do so and the present action is time barred.
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.
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.
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