A very important Statute of Limitations/Quiet Title Case is pending before the Florida Supreme Court. For a discussion on what a statute of limitations is, see my previous blog post here: statute of limitations .
For a discussion on what a quiet title action is, see another previous blog post here: Quiet title
The case is Bartram v. U.S.Bank, NA, and the court’s decision will likely affect billions of dollars of delinqent mortgages and the lives of thousands of homeowners.
The simplified facts of Bartram are as follows: Bartram did not pay the Note secured by his Mortgage. U.S. Bank, NA, foreclosed. Within the foreclosure complaint was an acceleration statement that the entire amount of the Note was due (i.e., Bartram could no longer pay the Note in monthly installments). The foreclosure was dismissed. U.S. Bank, NA, filed a second foreclosure more than five (5) years after the first foreclosure was filed.
The bank argues that each new monthly payment that Bartram fails to pay starts a new five (5) year statute of limitations. So, the second foreclosure may not have been timely as to the payments due more than five (5) years before, but it is timely as to the more recent payments that came due.
Bartram argues that the acceleration statement in the first foreclosure meant that the entire amount of the Note was due and that there were no more future monthly installment due dates. And, since there were no more future due dates, the five (5) year statute of limitations began to run with the date of acceleration (i.e., the date of the first foreclosure).
I believe that Bartram clearly has the better legal argument, and that the law disfavors those who “sit on their rights” as the bank did in waiting so long to institute its second foreclosure. However, court’s are also reluctant to decide cases on a “technicality”, especially if it results in a great windfall to an “undeserving” party such as a debtor who did not pay thier mortgage.
The briefs have been filed and oral arguments are set for early October. if you have an old foreclosure that the bank is not pursuing aggressively, you should defend it. If you can get it dismissed, you will be in position to quiet title if the bank fails to file a second foreclsoure withing fice (5) of the first foreclosure and the Florida Supreme Court rules in favor of Bartram. If you have a property that was the subject of a foreclosure begun more than five (5) years ago, and the foreclosure was dismissed, you are already well positioned if the court rules in favor of Bartram. Beware, however, banks may still try to foreclsoe even if more than five (5) years has passed.
If any of these scenarios apply to you, call my office for your free consultation.