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.