Florida’s 3rd District Court of Appeal out of Miami recently expanded the rejection of statute of limitations in foreclosure cases in U.S. Bank National Assoc., Trustee v Morelli, et al., Case No. 3D17-286 (Fla. 3d DCA June 6, 2018) (dismissal reversed).
In 2009 the lender filed a foreclosure alleging a default in payments “for the October 1, 2008 payment and all payments due thereafter.” The case was dismissed in 2011 when the lender failed to appear at trial.
In 2014 the lender refiled the case alleging the same October 1, 2008 default. The trial court reasoned that the default date alleged was more than 5 years from the filing of the new foreclosure lawsuit, and thus dismissed the lender’s foreclosure case per the statute of limitations.
The appellate court reversed the dismissal. The appellate court followed recent case law finding that when the lender alleges a default date “and all payments due thereafter” that borrower is in continuing default and that each new monthly payment not made is a new default upon which the lender can foreclose.
Since each monthly payment after October 1, 2008 was not made, and alleged all payments due thereafter not paid, each of the payments from July 28, 2014 filing date was in default going back 5 years from that date (back to July 28, 2009) and foreclosure could move forward. This concept has been used by other appellate courts such as here and here.
This still leaves the question remaining of what amounts the lender can actually collect in its final judgment; in this case only back to July 28, 2009, or all the way back to October 1, 2008.