On an issue previously written about here, the case of Deutsche Bank vs Beauvais, the 3rd DCA acted en banc on April 13, 2016 and reversed the Beauvais opinion which left the 3rd DCA as the only appellate court with a published opinion on the issue to find that a statute of limitation applied in foreclosure cases in Florida.
Now the 3rd DCA is aligned with the other DCAs such as the 4th and the Bartram opinion in holding that each new default is a new basis for foreclosure and the lender can re-file.
The Court held: “We reverse because we, like our sister courts, find the Florida Supreme Court’s decision in Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004), applicable to the instant action, and that it mandates reversal. . . . We therefore conclude that dismissal of a foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default if the subsequent default occurred within five years of the subsequent action.”
The Court further address the with prejudice vs. without prejudice issue, holding: “Simply stated, the holding in Singleton cannot be distinguished away on a with prejudice/without prejudice distinction. Whether voluntarily dismissed or dismissed with or without prejudice the result is the same: upon dismissal, acceleration of a note and mortgage is abandoned with the parties returned to the status quo that existed prior to the filing of the dismissed action, leaving the lender free to accelerate and foreclose on subsequent defaults.”
Finally, the Court also held that there was no special language or action necessary to de-accelerate the loan other than the dismissal itself. “There was no obligation on the bank to take any action to “decelerate” this loan following dismissal of the first foreclosure action because the mortgage itself confirms that the installment nature of the loan continues even after acceleration and the filing of a foreclosure action: [block quoting sections 19 and 12 of the uniform mortgage covenants, and section 6 of the note].”
I fully expect the Florida Supreme Court to rule along these same lines/reasoning in the Bartram opinion that should be coming any day now, and the flood gates of new foreclosure to be re-filed in Florida once again that many banks have been sitting on waiting for these rulings to fall their way before re-filing.
The 4th District Court of Appeal (DCA) in Florida recently held that an erroneous legal description in a foreclosure judgment did not require dismissal of the foreclosure case and the filing of a new lawsuit.
In the case, the lower court issued judgment to Fannie Mae in an uncontested foreclosure case. After the foreclosure sale and issuance of title, the Fannie Mae discovered the legal description of the property contained an error. Fannie Mae moved to vacate the title, sale, and judgment to correct the legal description. In doing so, the lower court also dismissed the case without notice and rehearing was denied.
On appeal Fannie Mae argued that it had the right to vacate the sale and judgment to amend the legal description and have a new final judgment entered with the correct legal description.
The court considered Epstein v. Bank of Am., 162 So. 3d 159, 162 (Fla. 4th DCA 2015) (quoting Lucas v. Barnett Bank of Lee Cnty., 705 So. 2d 115, 116 (Fla. 2d DCA 1998)) which found that:
When a mortgage contains an incorrect legal description, a court may correct the mistake before foreclosure. If, however, the mistaken legal description is not corrected before final judgment of foreclosure, and the mistake is carried into the advertisement for sale and the foreclosure deed, a court cannot reform the mistake in the deed and judgment; rather, the foreclosure process must begin anew.
The court also looked to Wells Fargo Bank, N.A. v. Giesel, 155 So. 3d 411 (Fla. 1st DCA 2014) where the 1st DCA reversed a case with similar facts where the lower court dismissed the case. The reasoning in Giesel was that the parties were returned to their “original status” which did not require dismissal because “the plaintiff can simply amend the complaint to correct the erroneous legal description”
The 4th DCA used this reasoning to reverse the lower court’s dismissal of the case to allow the bank to correct the erroneous legal description and have a new judgment entered with such.