I'm looking for information about the rules and laws around the foreclosure statute of limitations in Florida. Are there such a thing? From my understanding if you are in foreclosure for over 5 years and still in the home you can keep the home but the bank will be on title? Or something to that effect.
Can I get some insight to this topic? Has anyone been through this?
No, that was a delusion being promoted, for about 10 minutes..The theory was if was no active foreclosure in place at any point 5 years after one began they couldn't foreclose, but the lien would remain. Not true. See Batram vs US bank, 5th decade florida. There is no get out of jail free card, and the bank can foreclose.
Interesting thanks for the info @Wayne Brooks anyone else experience this?
Found this in a Google search: Patricia Dzikowski, Attorney
Florida law sets deadlines by which creditors, including mortgage holders, must file suit to collect their debts and foreclose on property. If a mortgage lender misses the deadline, it may never be able to enforce the debt. If you have not been able to make your mortgage payments and your mortgage lender or holder has not filed a foreclosure action as quickly as you expected, you should find out how much time it has to bring a foreclosure lawsuit.
What Are Statutes of Limitations?
The laws that set deadlines for lawsuits to be filed are called statutes of limitations. Different deadlines are set for different types of lawsuits. And statutes of limitations vary by state.
If a creditor files a lawsuit against you after the time period has run, you can defend the suit by asserting the statute of limitations. The expiration of the statute of limitations is an affirmative defense to a lawsuit. This means that even if you admit that you owe the money that the creditor is suing to collect, if the statute has expired, you can prevent a judgment from being entered against you by responding and claiming that the suit is barred by the statute of limitations.
Florida Mortgage Foreclosures & Deficiency Judgments
In Florida, a mortgage holder can only foreclose on real estate by bringing a lawsuit. (In some other states, mortgage lenders can bring nonjudicial foreclosures -- which means they don't have to sue in court.) (Learn the difference between judicial and nonjudicial foreclosure.)
When the mortgage holder obtains a judgment of foreclosure, your mortgaged property is sold by the court at a foreclosure sale. If the sale does not bring in enough money to pay the entire amount of judgment, the mortgage holder can ask the court to enter a deficiency judgment against you for the difference between the foreclosure judgment amount and the value of the property. Sometimes this is done as part of the foreclosure lawsuit, but not always. Under Florida law, a mortgage holder can also obtain a deficiency judgment by filing a separate lawsuit against you. (For more information, see Summary of Florida's Foreclosure Laws.)
(Learn more about deficiency judgments in foreclosure.)
The Time Limitation for Foreclosure in Florida
It is easy to look up how much time the statute of limitations gives a mortgage holder to foreclose in Florida (five years), but it gets tricky when you try to figure out when that time period starts and ends.
Five year deadline. Mortgage holders have five years to bring a lawsuit for foreclosure in Florida.
The time period begins to run from the date of default. Generally, it runs continuously but if you take action that prevents the mortgage holder from filing a foreclosure action, such as filing for bankruptcy, the time period may be tolled (suspended) or extended until the mortgage holder can legally take action again.
What Is the Date of Default?
Default is defined in your mortgage loan documents. Usually, it is defined as failing to make your payments when they come due or to bring them current within a certain grace period. But if you have missed several payments, which is the default date? The answer is that they probably all are. Each time you miss a mortgage payment, you are likely defaulting on your obligation under the note and mortgage.
When Does the Time Begin to Run?
Unless you have cured any of the defaults by making the payment due for that period, the mortgage holder can generally bring a foreclosure action based on any of the default dates. The only requirement is that the foreclosure suit must be filed within five years from the date the mortgage holder is using as the default date. Each time you miss a payment, a different time period begins to run. The mortgage holder can generally act on any of them.
This means that ultimately, your mortgage holder has five years from the date the final payment is due to bring a foreclosure action in Florida.
A Different Starting Point for Deficiency Judgments
In Florida, the statute of limitations for deficiency judgments resulting from foreclosures on or after July 1, 2013, is one year. The time period does not begin to run until the day after the court clerk issues a certificate of title to the buyer in the foreclosure sale. This is because your mortgage holder does not become entitled to a deficiency judgment in connection with a foreclosure until a judgment has been entered and your property has been sold for less than what was owed. If the foreclosure sale occurred before July 1, 2013, the statute is the earlier of five years or July 1, 2014.
You are absolutely right, however, batram v US Bank is before the Florida Supreme Court right now and is expecting a ruling in April, with the expectation that the court will uphold the statute as written, which is 5 years from default, not the monthly default that the judge tried to rule.
(Thus proving this is the best government that money can buy)
The fact that there is an acceleration clause and not a deceleration clause should be enough to have put that argument into the ground in the first place.
Also, most of the other states have upheld a statute of lims for their states.
That being said, I have been using the statute of limitations rule in regards to balloon payments and maturity dates, as in those situations the default date is extremely clear. In those properties, my title company's underwriter goes ahead and covers the property as simple process of law. (In other words, no quiet title needed)
@David Dey While I would LOVE for you to be right, on the whole 5 year thing, as it would open up countless possibilities, I just can't agree. We'll let the Supremes decide that one. But as to when the 5 years begin......it is either 1) upon formal acceleration of the loan, not just default, and 2) 5 years after the last payment is due as per the loan terms (ie. at 35 years from origination on a 30 year loan). As for your "balloon" mortgages, the lender gets 5 yeared out because there was no action with the 5 years from the last scheduled payment (the balloon), not 5 years from simple default. I so rarely see these in residential mortgages, I haven't given it much thought....but now, I may call you and chat, if you're open to it.:)
@Wayne Brooks first, I am definitely open to the conversation. As to the balloon, that is the default because that is the final payment.
One of the best articles I've read on Batram V Us Bank is this one.
In any case, we should find out within a month.
In any case, here is the actual statute regarding the computation of time regarding acceleration and the statute of limitations:
95.031 Computation of time.—Except as provided in subsection (2) and in s. 95.051 and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.
(1) A cause of action accrues when the last element constituting the cause of action occurs. For the purposes of this chapter, the last element constituting a cause of action on an obligation or liability founded on a negotiable or nonnegotiable note payable on demand or after date with no specific maturity date specified in the note, and the last element constituting a cause of action against any endorser, guarantor, or other person secondarily liable on any such obligation or liability founded on any such note, is the first written demand for payment, notwithstanding that the endorser, guarantor, or other person secondarily liable has executed a separate writing evidencing such liability
The first written demand for payment constitutes acceleration, not the foreclosure. However, I tend to use the first date of lis pendens as my counting date. (Or at least the date listed in the complaint as the month of default, by the plaintiffs own admission)
@David Dey Yes, I've read that "demand for payment" constituting acceleration, as the demand "for the full balance". I agree in using the LP as the safe 5 year start date, as acceleration is required prior to filing the foreclosure. I only mentioned acceleration, verses default, for those case cases where the bank didn't file the foreclosure within a couple or three years, so you don't know if the clock started, since you don't know if they actually "accelerated" at the time of default, ot just prior to the foreclosure filing, if any.
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