Earlier this month the Florida 5th DCA released an opinion, Grant v. Citizens Bank, N.A., slip op., Case No. 5D17-726 (Fla. 5th DCA Dec. 26, 2018), holding that the 5 year statute of limitations to bring an action to enforce a note and mortgage does not prevent lenders from collecting amounts more than 5 years old.
The issue in this case on appeal was whether the court was incorrect in awarding interest over 5 years prior to acceleration and the filing of the lawsuit to a foreclosing lender. The court stated that the statute of limitations is that acceleration and filing of foreclosure must happen within 5 years of the stated default that occurred within the 5 years period. Each missed monthly installment payment constitutes a new default on which foreclosure may be based.
Thus, even if the lender does not file for foreclosure until more than 5 years after the default, the lender may still recover amounts more than 5 years past due ss long as it files for foreclosure within 5 years of maturity or a subsequent missed payment.
The First and Second DCAs have not addressed this issue, while the Third, Fourth, and Fifth Districts are in agreement on the issue, trial courts in all districts of Florida are bound by the Grant, Graybush (Bank of Am., N.A. v. Graybush, 253 So. 3d 1188 (Fla. 4th DCA 2018), and Gonzalez (Gonzalez v. Fed. Nat’l Mortg. Ass’n, – So. 3d -, 2018 WL 3636467 (Fla. 3d DCA Oct. 1, 2018) opinions.
Therefore, foreclosing lenders in Florida are able to recover all amounts owed to them; not just those that occurred during the 5 years prior to acceleration and/or filing.