The 3rd DCA recently re-heard Deutsche Bank vs. Beauvais en banc which involved the statue limitations in foreclosure cases like the current pending opinion at the Florida Supreme Court; US Bank vs. Bartram.
While these opinions are pending, we should revisit the statute limitations argument. The homeowners’ argument is that once acceleration occurs, either by the date stated in the default letter, or the filing of the complaint, that the bank has five years to foreclose; which is an absolute deadline.
The banks’ argument is that until a final judgment is entered, there is no record evidence that an acceleration occurred. The bank equates this issue with a reinstatement of the loan. Up until the final judgment, a borrower has the right to reinstate the loan. This is only the back amounts due, plus the foreclosure costs and fees, but not the full amount of the loan per the acceleration. The banks’ argument is essentially that if a borrower can pay less than the accelerated amount to reinstate the loan, then acceleration is not effective until a final judgment is entered.
And unfortunately, this argument does make sense; and the high courts seem to be buying it. If a buyer has the right to pay less than the full loan amount per the acceleration, then why should that trigger the statute of limitations of the case is dismissed (voluntarily or by the court) before judgment is entered. What if the acceleration was attempted, but defective? I do understand the argument that you need a final judgment and a finding of fact that there was in fact a valid acceleration of the loan. Otherwise, there may have been attempted acceleration, but not an legally effective acceleration.
Only time will tell how the 3rd DCA and Florida Supreme Court will rule, but I expect them to rule along the lines of the 5th DCA in Bartrum (and nearly every other Florida DCA), that each subsequent missed payment is a new default which the bank can foreclose on.