The Florida 5th District Court of Appeal recently issued a written opinion in an appeal, Hicks vs. Wells Fargo 5D14-1748, on the issue regarding alleging a default date in a new foreclosure action that was outside of 5 years from the filing of the new lawsuit.
The bank sued to foreclose its note and mortgage in January 2013 alleging that the borrowers failed to make the June 1, 2006 payments and all payments thereafter.
If you remember previous posts on this issue and regarding the Bartram Florida Supreme Court appeal, the statute of limitations on foreclosure actions if 5 years.
The lower court, after holding a trial, entered judgment in favor of the bank and the borrowers appealed.
While the 5th DCA did follow Singleton and Bartram in that it found that the bank could bring a new foreclosure action on the note and mortgage, that the bank had it had to be based upon a default within the 5 years statute of limitations; or 5 years before filing the new lawsuit which 2006 was long after the 5 year “look-back” period.
The 5th DCA found that the trial court erred in granting judgment for the foreclosing bank and reversed with instructions to dismiss the complaint.