United States: Second Bites At The Apple In Florida Foreclosures May Not Be So Sweet: New Appellate Court Cases Raise The Specter Of Statute Of Limitations Challenges To Restarts

Financial services companies pursuing judicial foreclosures in Florida already face a host of unique and challenging hurdles. The varying and often-times court- or judge-specific procedural, substantive, and evidentiary requirements and expectations can create pitfalls for lenders seeking to foreclose on a mortgage. Two recent cases, from separate Florida District Courts of Appeal, raise the specter of yet another unfortunate outcome for lenders: dismissal of their entire action on statute of limitations (SOL) grounds. While the inconsistencies in the opinions may offer the silver lining of ultimate resolution by the Florida Supreme Court, lenders should discuss the possible implications of the SOL to strategic litigation and business decisions with counsel.

The dramatic rise in home loan mortgage default rates from 2007-2009 triggered a corresponding increase in foreclosure actions across the country. In Florida, many of these judicial foreclosure actions were placed on hold or delayed because of backlogs in the courts, changes in the legal landscape, or delay tactics employed by borrowers or their counsel, not to mention the lenders' own desire to undertake internal evaluations of the strengths, weaknesses, and merits of those cases. For a time, thousands of foreclosure cases with complaints filed four, five, or even six years ago, remained pending in the Florida courts. Often, rather than pursuing these aging cases, servicers dismiss and restart the foreclosures by filing a new complaint—a common practice in jurisdictions throughout the United States. However, depending upon when the initial complaint was filed, this strategy may now expose servicers pursuing Florida judicial foreclosures to motions to dismiss.


The uncertainty over the SOL issue in Florida was highlighted by the recent Third District Court of Appeals opinion in Deutsche Bank v. Beauvais, No. 3D14-575, Case No. 12-49315 (Fla. 3d DCA Dec. 17, 2014). The critical issue in Beauvais—and the question underlying the SOL debate in Florida—is the application of the SOL to successive foreclosure actions. Specifically: does acceleration of payments due in a dismissed foreclosure action start the "SOL clock" and bar subsequent foreclosure actions even when those actions are based on entirely new payment defaults.

In Beauvais, a mortgage loan servicer filed a 2007 foreclosure action, based on a September 2006 payment default. In the foreclosure complaint, the servicer accelerated the entire balance due and owing under the note and mortgage, demanding repayment of the full amount remaining on the loan. This foreclosure action was dismissed, without prejudice, when the servicer failed to appear at a court-ordered case management conference.

After dismissal of the initial foreclosure action, a condominium association (the Association) filed a second foreclosure action, based on its lien against the property for unpaid condominium dues. The Association obtained title to the property in 2011, subject only to the borrower's mortgage.

In December 2012, Deutsche Bank Trust Company Americas (Deutsche Bank), the current owner of the mortgage, filed a second foreclosure action related to the mortgage and note, based on an October 2006 payment default. Similar to the initial action, Deutsche Bank accelerated all payments and declared the entire outstanding balance immediately due and owing.

In an attempt to contest the Deutsche Bank foreclosure, the Association moved for summary judgment. The Association argued that acceleration of the payments due in the initial foreclosure action started the five-year SOL clock for the entire debt. The Association further argued that the dismissal without prejudice of the initial foreclosure action did not negate or otherwise invalidate the acceleration of the debt. In other words, the mere dismissal of the action did not restart the SOL clock.

The trial court agreed with the Association and granted its motion for summary judgment, holding that the SOL barred Deutsche Bank's foreclosure action because it was filed more than five years after the filing of the initial foreclosure complaint. The trial court further declared the mortgage null and void and quieted title to the property in favor of the Association. It was a victory for the Association. Not surprisingly, Deutsche Bank appealed.

On review, the Third District Court of Appeals focused on the nature of the dismissal. Because the original foreclosure had been dismissed without prejudice, the Court reasoned that the original acceleration of the debt had not been negated or decelerated. Therefore, the original acceleration event— the filing of the first foreclosure complaint—started the SOL clock. Nothing in the first foreclosure action invalidated the initial acceleration or reinstated the installment nature of the mortgage contract and there were therefore no additional payments due after the acceleration. Without an obligation to make payments, there could not be any corresponding new payment defaults. This outcome would likely have been different if the case had been dismissed with prejudice.

Based upon its reasoning, the Court held that the original acceleration was never invalidated, and the SOL never stopped running. Accordingly, the SOL barred the second Deutsche Bank foreclosure action because that action was filed more than five years after the initial foreclosure complaint. The Court did, however, reverse the trial court's invalidation of the mortgage, holding that the SOL did not affect the validity of the mortgage as a lien on the property. Rather, it only affected Deutsche Bank's ability to institute a foreclosure action to seek repayment based on the Borrower's payment default. Nevertheless, it was a significant defeat for Deutsche Bank.


Prior to Beauvais, on April 25, 2014, the Fifth District Court of Appeals decided U.S. Bank Nat'l Ass'n v. Bartram, No. 5D12-3823, 2014 WL 1632138 (Fla. 5th DCA Apr. 25, 2014). Unlike Beauvais, Bartram held that "a default occurring after a failed foreclosure attempt creates a new cause of action for [SOL] purposes, even where acceleration had been triggered and the first case was dismissed on the merits." Id. at *6. The Bartram Court found that if a lender's foreclosure action is dismissed and the borrower defaults after the original action commenced, the SOL's application to the original default does not prevent the lender from bringing a subsequent action based upon the new default. The Bartram case was the first time that a Florida appellate court expressly held that each default triggers a new cause of action for foreclosure for SOL purposes.

In Bartram, U.S. Bank's initial foreclosure action was involuntarily dismissed. Bartram's ex-wife, who owned a note and mortgage on the same property pursuant to a divorce action, brought a separate foreclosure action naming U.S. Bank, Bartram, and the homeowners' association as defendants. Bartram filed a cross-claim against the Bank in his ex-wife's action, seeking declaratory relief and to quiet title to the subject property. Bartram argued that because more than five years had passed since U.S. Bank had accelerated the full amount due under the mortgage, the SOL barred U.S. Bank from now enforcing its rights under the note and mortgage. Id. at *1. The trial court agreed and entered judgment in favor of Bartram and against U.S. Bank.

The Fifth District Court of Appeals reversed the trial court, holding that as long as Bartram defaulted after the commencement of the first action, U.S. Bank was not barred from enforcing its rights under the note and mortgage, even though five years had passed since U.S. Bank's foreclosure action. The Court cited the Florida Supreme Court's previous opinion in Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004), that any "subsequent and separate alleged default 'created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action'." Bartram, 2014 WL 1632138 at *6. The Bartram Court held that any new payment default less than five years old presented a new cause of action, which was enforceable by U.S. Bank and not subject to the SOL. Id.

The Future: Florida Supreme Court?

As a result of Beauvais and Bartram, a clear circuit split now exists in the Florida appellate courts over the application of the SOL to judicial foreclosure actions previously dismissed without prejudice. Bartram is currently being briefed to the Florida Supreme Court, and it is possible that the conflict will be resolved by the end of 2015. Until the Supreme Court clarifies this issue, servicers should be mindful of the potential application of the SOL to foreclosure actions, particularly in cases where an initial breach and acceleration occurred more than five years ago. Servicers should carefully evaluate this issue before voluntarily dismissing and restarting any such cases. If they do not, they may find that the proverbial "second bite of the apple" is not as "sweet" as the first.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions