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Statute of Limitations Cases: Foreclosure on Subsequent Default Not Barred

jbublick.blogspot.com | September 21, 2014

Diaz v. Deutsche Bank National Trust Co., et al., 2014 WL 4351411 (S.D. Fla., Sept. 2, 2014). In this case, the lender's foreclosure actions had previously been dismissed three times - even once with prejudice. The homeowner sought a declaratory order that the note and mortgage were no longer enforceable based on the application the five year statute of limitations. The Court held that even if a foreclosure action is unsuccessful for "whatever reason", the mortgagee "still has the right to file later foreclosure actions-and to seek acceleration of the entire debt-so long as they are based on separate defaults." The Court noted that it consistently holds that complaints that raise this claim are without merit. See Espinoza v. Countrywide Home Loans Servicing, L.P., 2014 WL 3845798 (S.D. Fla. Aug. 5, 2014), Matos v. Bank of America, 2014 WL 3734578 (S.D. Fla. July 28, 2014), Romero v. SunTrust Mortg., Inc., 2014 WL 1623703 (S.D. Fla. Apr.22, 2014).

Smathers v. Nationstar Mortgage, LLC, 2014 WL 4639136 (M.D.Fla. Sept. 16, 2014) is another case where a foreclosure action had previously been dismissed. Here also, did the homeowner contend that the lender was barred from enforcing the note and mortgage due to Florida's five-year statute of limitations . The homeowner alleged that the note and mortgage were null and void and a cloud on his title to the property. In accordance with other decisions, the Court dismissed the homeowner's complaint, holding that while the lender may not be able to pursue a action on the default that formed the basis of the first foreclosure action, "an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue. See also, Torres v. Countrywide Home Loans, Inc., 2014 WL 3742141 (S.D. Fla. July 28, 2014), Kaan v. Wells Fargo Bank, N.A., 981 F.Supp. 2d 1271 (S.D. Fla. 2013).

Quiet Title Actions

Missing "N.A." = Absurd Argument

In the case of Unrue v. Wells Fargo Bank, N.A. 2014 WL 4648628 (5th DCA September 19, 2014) (subject to revision or withdrawal), the homeowner argued that the mortgage was not enforceable due to the mortgage listing the lender as "Wells Fargo" instead of "Wells Fargo, N.A." The Court used the word "absurd" twice. The Court of Appeals remanded the case to allow the homeowner one opportunity to file an amended pleadings pursuant to Rule 1.190(a), but warned that the last time this argument came before the Court in a similar circumstance, the trial court's dismissal was upheld, referring to the homeowner's complaint as an "absurd demand" and attorneys fees were assessed.

See. Badgley v. SunTrust Mortg., 134 So.3d 559 (5th DCA 2014). The dissent, would not have even allowed an amended pleading, deeming the homeowner's case an "affront to the court" and "frivoulous."

 

Back to September 2014 Archive

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