How Late Is Too Late To Foreclose?

Written By: Emil FleysherJanuary 12, 2015

Florida has a five-year statute of limitations for mortgage foreclosures. This means that the lender can file a foreclosure lawsuit within five years. This is possible if a borrower defaults on his or her payments. But this leaves the question of whether the clock restarts if there is a case dismissal. Or, if the time is still running from the original default. These questions have yet to have an answer. However, they are getting closer to a definitive response; the Florida Supreme Court should be providing an answer during this upcoming year.

˝Continuing default˝ Theory

During one case where the court dismissed the foreclosure, it was stated that they could refile establishing a new default date; even if the original default happened more than five years ago. Under the “continuing default” theory, the dismissal canceled the acceleration of the loan so that the payments would continue to be due every month. And, the loan could get re-acceleration following a new default. In another case that was filed a short time after the first one, the court went further. They stated that this “continuing default” theory also expanded to those lenders who have moved for voluntary dismissal.

Not The Same Result for Every Case in Florida Supreme Court

However, the latest case that took place in December 2014, had a completely different result. The court sharply disagreed. They stated that although the court dismissed the case, it “did not by itself negate, invalidate or otherwise decelerate the lender’s acceleration of the debt in the initial action.” After the dismissal, the bank made no attempts to collect the unpaid mortgage. Therefore, when they went back to file for second foreclosure action, the court denied them the foreclosure baring them by the statute of limitations. Due to the conflict of the difference of opinion by each of these cases, the Florida Supreme Court received a call to revise the law. And, to come up with a unanimous decision.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020. Or, send an e-mail to, or complete the contact form below.

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