Case Law Update on “2 Dismissal Rule” and Statute of Limitations.

There is a rule of Civil Procedure that exists which bars successive lawsuits after 2 tries, often referred to as the “two dismissal rule” under Rule 1.420.  The 1st DCA recently held that this rule does not apply to foreclosures.  Based upon the reasoning in Bartram that each monthly payment not made was its own default which warranted a new foreclosure action, the Court held that Rule 1.420 did not bar a third foreclosure action.  Forero v. Green Tree Servicing, LLC, No. 1D16-2151 (Fla. 1st DCA July 14, 2017)


In regards to the statute of limitations, the 4th DCA joined the 2nd DCA in finding that continuous defaults occurred each month that payment was not made under the Bartram line of reasoning, and that the complaint may allege the same default date (or one beyond 5 years old) as long as there is also alleged a continuous state of default for each payment since.  Kebreau v. Bayview Loan Servicing, LLC et al., No. 4D16-2010 (Fla. 4th DCA July 12, 2017) 

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