In the first blog of this series, we discussed the prevalence of foreclosures in our communities and typical questions that many people have, such as what is going on with that property? What is taking so long? Is it still in foreclosure? Who owns the property now? What is the bank doing?
As mentioned in the first blog, sometimes a foreclosure case is filed and there is no movement in the case for years because the bank is not doing anything significant to move its case along. Oftentimes, these cases are dismissed by the court as a result of inactivity. Then there are some instances where the bank itself may decide to dismiss its own complaint. If one foreclosure case is dismissed, does the bank have a right to re-file the foreclosure case? Is the bank ever barred from re-filing the foreclosure case?
According to the applicable case law in Florida, whether a foreclosure case is dismissed by the court or voluntarily by the bank, the bank is permitted to accelerate the loan and file a second foreclosure case as a result of subsequent defaults. Courts in this state have held that even if the initial default occurred more than 5 years before the second complaint is filed, the second case is not barred by the statute of limitations if the borrower failed to make any subsequent payments due on the note; moreover, the second case could be based on any of the missed payments since the initial default. The reasoning for this is as follows: each default affords the bank the right to accelerate payment on the note in a subsequent foreclosure action. See, Singleton v. Greymar Assocs., 882 So. 2d 1004 (Fla. 2004); see also, Deutsche Bank Trust Co. Ams. v. Beauvais, 188 So. 3d 938, 945 (Fla. 3rd DCA, April 13, 2016); see also, Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 2016 Fla. App. LEXIS 12980 (Fla. 2d DCA, August 26, 2016).
Please do not hesitate to contact our Firm to discuss your options based on your specific factual circumstances. We routinely assist our clients with navigating through these questions and helping them develop a course of action.
Stand by for the final part of the series.
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