The bartram decision stated that even with a prior dismissal without prejudice on record, subsequent missed payments that fall within the statute of limitations give a lender the right to foreclose. Velden also set a precedent for how the statute of limitations applies to damages. Though the debtor’s argument that the statute of limitations had been exceeded was shot down, the court agreed with his objection in part.
Deutsche Bank v. Beauvais or US Bank v. Bartram. One of the hottest topics in all of foreclosure right now is whether the traditional 5 year statute of limitations period applies in foreclosure cases.
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While the underlying facts in Bartram are somewhat convoluted, the relevant question before the florida supreme court was whether the five (5) year statute of limitations found in 95.11(2)(c), Fla. Stat., would operate to bar banks from filing subsequent foreclosure actions after the loan was accelerated and an initial foreclosure action was.
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Banks are not barred by the statute of limitations deadline if their first foreclosure action is involuntarily dismissed by a trial court. Under Bartram, banks can file a second foreclosure lawsuit based upon a defaulted payment that happened after the date of the first foreclosure’s dismissal.
A year after the original dismissal, as part of a cross-claim in another foreclosure proceeding, Mr. Bartram sought a declaratory judgment to cancel the mortgage and quiet title to the property. 10 Mr. Bartram asserted that the applicable five-year statute of limitations, set forth in F.S. 95.11(2)(c), barred the lender from bringing another.
While the underlying facts in Bartram are somewhat convoluted, the relevant question before the Florida Supreme Court was whether the five (5) year statute of limitations found in 95.11(2)(c), Fla. Stat., would operate to bar banks from filing subsequent foreclosure actions after the loan was accelerated and an initial foreclosure action was filed and subsequently dismissed by the trial court for lack of prosecution, i.e. involuntarily dismissed.
Bartram Affirmed: Florida Supreme Court Provides Guidance For Filing a Successive Foreclosure action post dismissal. Finally, the opinion draws a distinction between involuntary dismissals with and without prejudice in relation to the "mortgagee’s ability to collect on past defaults.". Id. at 20. Therefore, when a post-dismissal cause of action for foreclosure accrues and what past payments are at issue in it are open questions.