Florida Supreme Court Provides Additional Clarity | Key Points

  1. In the last few years, several Florida Courts have addressed the statute of limitations in the context of a mortgage foreclosure action. Some Florida courts erroneously applied the statute of limitations to prevent a mortgage foreclosure which was based on an initial payment default date which occurred more than five years prior to the filing of the foreclosure complaint.
  2. In Bollettieri Resort Condominium Assoc., Inc. v. The Bank of New York, Case No. SC16-1680, Judge Lawson of the Florida Supreme Court, recently issued a special concurring opinion wherein he explained a missed payment “is a non-event for statute of limitations purposes” because the statute of limitations does not begin to run until the cause of action accrues.
  3. Judge Lawson explained in a mortgage foreclosure action based on a traditional thirty-year note[i] a cause of action “does not accrue until thirty years after signing—when the full balance is due—unless the lender accelerates and declares the full balance due earlier.” Although Judge Lawson’s concurring opinion is non-binding, Florida district courts will likely rely on it to prevent, or at least limit, application of the statute of limitations as a defense in foreclosure matters.

[i] This is premised on an additional condition that the note contains an optional acceleration provision.

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