201901.23
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FLORIDA DCA FINDS STATUTE | Key Points

  1. Earlier this month the First DCA issued a written opinion again addressing the statute of limitations, this time in the context of a foreclosure action which included a count to reestablish a lost note under § 673.3091, Fla. Stat. Mielke v. Deutsche Bank Nat’l Tr. Co. as Tr. for GSAA Home Equity Tr. 2005-MTR1, 1D17-4265, 2019 WL 149436 (Fla. 1st DCA Jan. 10, 2019). The borrowers argued the Bank “was barred by the statute of limitations from bringing a count to reestablish the lost note” because the Bank was aware of the lost promissory note when it filed and dismissed a previous foreclosure action which included a lost note count.
  2. Both the trial court and First DCA rejected the borrowers’ statute of limitations argument addressed to the Bank’s lost note count. The First DCA explained that reestablishment of the note under § 673.3091 did not create a separate cause of action, rather, the cause of action is enforcement of the note itself. The Court surmised: “[T]he right to enforce a lost note…travels with the breach that triggers the need to seek enforcement—default by a mortgagor. As a result, section 673.3091 does not create a standalone cause of action apart from a breach.”
  3. The First DCA affirmed the Bank’s final judgment concluding that the “right to enforce a promissory note accrues when the default occurs, regardless of whether the plaintiff possesses the note.” The First DCA’s decision in Mielke is another in a long strand of cases which further limits the applicability of the statute of limitations in the foreclosure context. Although this decision is not binding on the other Florida District Courts, it is likely to favorably influence them if they address the same issue.

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