SOL UPDATE | Key Points
- In Velden v. Nationstar Mortg., LLC, No. 5D16-3628, 2018 Fla. App. LEXIS 359, 1-2 (5th DCA Jan. 12, 2018), the Court held the statute of limitations, codified at 95.11(2)(c), Fla. Stat. 2017, does not prevent a bank from initiating a foreclosure action more than five years after a borrower’s default as long as the bank alleges and proves subsequent defaults which occurred less than five years from the filing of the lawsuit. An allegation in the complaint that the borrower failed to make “all subsequent payments” satisfies this requirement.
- According to well-established precedent, if the bank initiates its foreclosure action more than five years after the initial default date, its award of judgment damages will likely be limited to the “amounts which accrued beyond the five-year limitations period.” The five-year limitations period is measured from the filing date of the current suit.
- Although Judge Lambert provided insightful and well-reasoned logic in his concurring opinion, the Fifth DCA’s opinion in Velden makes it clear that a bank seeking to foreclose and collect the full amount of the note should file their complaint within five years of the initial default.