201804.05
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FLORIDA SUPREME COURT FINDS NO CONFLICT OVER STATUTE OF LIMITATIONS REFUSES TO FURTHER CONSIDER THE ISSUE

In the last few years, Florida courts have published several written opinions addressing the statute of limitations and its application in the context of a mortgage foreclosure action. We discussed this topic in depth in prior e-Blasts. (June 2017 & November 2017) About a year ago, the Third DCA addressed the issue in Deutsche Bank Trust Co. Ams. v. Beauvais.[i] In Beauvais, the defendants argued that the bank’s foreclosure was time barred under the applicable statute of limitations[ii] because the bank “failed to pursue foreclosure within five years” of acceleration after the bank’s first foreclosure was dismissed. Relying heavily on the Florida Supreme Court’s decision in Singleton, the Third DCA disagreed and explained: “‘[S]uccessive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit,’ were not barred if, as here, the second suit was predicated on a new default because a ‘subsequent and separate alleged default create[s] a new default and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action.’”

Aqua Master Association, a co-defendant in the Beauvais foreclosure and the new title owner of the property, petitioned the Florida Supreme Court to invoke its discretionary jurisdiction to review the Third DCA’s decision in Beauvais. The Florida Supreme Court declined to exercise its jurisdiction via order entered March 2, 2018, finding the conflict between the District Courts of Appeal on the statute of limitations issue was “resolved.” This recent decision from the Florida Supreme Court further solidifies the precedent that, regardless of prior attempts to foreclose, a bank can foreclose its mortgage lien provided its complaint includes a “new” default date which occurred within five years of the “new” complaint filing date.

[i] Deutsche Bank Trust Co. Ams. v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016).

[ii] Fla. Stat. 95.11.