U.S. BANK NATIONAL ASSOCIATION vs BARTRAM: The Beginning of the End of The Five Year Statute of Limitations in Florida

Supreme Court

“Right now, this opinion is law of the land,” Ice said. “For homeowners, it means there is no end in sight to the litigation.”

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Appeals court tosses five-year foreclosure deadline… For now…

Can’t wait until the hedge funds, investors and third party purchasers who bought homes under the preface that the 5 year SOL issue barred a subsequent foreclosure based on FL Statute 95.11(2)(c) to start losing their ass on this decision.

Courts working backwards to get to a predetermined outcome never makes good law.

From The Palm Beach Post..

A Florida appeals court crushed the hopes of hundreds, if not thousands, of defaulted homeowners Friday in a benchmark decision on how the state’s five-year foreclosure deadline is interpreted.

With the first serious wave of foreclosures now six years past, some borrowers with aging or abandoned cases were counting on a common contract law that says a person has five years to sue on a debt or give up the right to collect.

In Friday’s ruling in U.S. Bank National Association vs. Patricia J. Bartram, et al, the key issue was when the clock started ticking on the five-year deadline. Many foreclosure defense attorneys agree that happens at the time of “acceleration” — when the bank decides after a series of missed payments that the entire loan amount is due. That typically occurs when the foreclosure is filed with the court.

Bartram’s foreclosure was filed in May 2006 by the Law Offices of David J. Stern, which closed in March 2011 after allegations of wrongdoing. In May of 2011, the court dismissed the foreclosure after the bank missed a case management conference.

Eventually, the court canceled the note and mortgage and said the bank could no longer enforce its right to collect the debt.

But on appeal, it was decided the five-year deadline to collect started anew when each mortgage payment was missed. That essentially means the bank is under no deadline to refile for the life of the mortgage, plus five years, said attorney Mike Wasylik, who represents Lewis Bartram. Lewis and Patricia Bartram are divorced.

Prominent Royal Palm Beach foreclosure defense attorney Tom Ice said for homeowners in foreclosure litigation, “the news doesn’t get much worse” than Friday’s decision.

He believes it will result in an increase of banks restarting old cases or dismissing flawed cases to start over with new paperwork and pleadings.

“Right now, this opinion is law of the land,” Ice said. “For homeowners, it means there is no end in sight to the litigation.”

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Full article here…
(paid subscription)

Copy of the 5th DCA Opinion below…

Snip

Because we believe the issue we resolve is a matter of great public importance, we certify the following question to the Florida Supreme Court:

Does acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, trigger application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on all payment defaults occurring subsequent to dismissal of the first foreclosure suit?

We can only guess how the SCOF will rule on this “matter of great public importance.”

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4closureFraud.org

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U.S. BANK NATIONAL ASSOCIATION vs BARTRAM

Comments
26 Responses to “U.S. BANK NATIONAL ASSOCIATION vs BARTRAM: The Beginning of the End of The Five Year Statute of Limitations in Florida”
  1. BYRON EGGERS says:

    TOTAL BS

  2. John says:

    Total corruption of the court system where they can just change the rules at will and screw over the common people in favor of big money. Why am I not surprised? These judges should be given a real lesson in punishment when they ruin peoples lives.

  3. Mark Grayson says:

    My loan was accelerated in October 2007. There was a Stern case that was full of forged documents, mysterious allonges, and bogus notaries. It was thrown out in 2010. Yada, yada, yada. I was 125,000 under water within a year of buying my house in 2005. It was obviously over appraised by the bank. A common practice back then. A health crisis put me behind in my mortgage payments. Countrywide was unwilling to negotiate…period. Anyone with a mortgage knows that once you get behind the bank will no longer accept anything less than all arrears paid with penalties and interest to bring the loan current. Monthly payments are no longer an option. Once the loan is ‘accelerated’ the bank is demanding payment in full. They have ‘matured’ the loan. In my case this was done with a Lis Pendens in a court of law. By their own hand they have chosen to thrown out the payment schedule and demand all payments due…immediately. It is a giant red flag that they are no longer willing to accept monthly payments. What could be more clear???? Re accelerating a loan for a missed payment at this point would be redundant. The loan has already been accelerated and unless the mortgage company files a ‘rescission of acceleration’ with the court then it would seem to me the 5 year statute of limitations should apply. Otherwise what is the point of the acceleration clause in the first place? And if the bank is no longer willing to accept monthly payments it seems ludicrous they can penalize you for not making one. In my case I filed bankruptcy nearly 6 years ago wiping out my mortgage obligation. Are they going to reaccelerate the loan because I have missed payments since the discharge of the BK? I was forced to move back into the house after vacating it because the city of Sarasota placed a lien against me for having to send a crew out to clean it up. When I stepped back into it after 5 years it had been vandalized, windows broken, people partying inside, mold, dead bugs and animals. It was a mess. And there is a school bus stop on the corner in my yard. I was horrified when I drove by and saw about 20 school kids parked on the lawn and playing tag in the yard of the vacant house…I’m sure going inside to smoke and do who knows what. I felt I had no choice but to take back possession. I have never once stood in their way or tried to impede their foreclosure. On the contrary…I was calling them every month asking them to foreclose already. I wanted to start fresh. I offered several times to sign a deed-in-lieu…no success. Bankruptcy is traumatic enough, being hounded and harassed 6 years later is unforgiveable. To have to take back possession of a house you had no choice but to walk away from years ago and see your delapitated dreams, rubs salt in your wounds. I’ve been back in the house nearly 2 years now. It’s very stressful. Last July I dropped dead from a cardiac arrest. I was 57. I was in intensive care for a week…In a coma for several days. I feel the stress of this has taken its toll. I feel the bank is at least partly to blame. This should have been resolved years ago. Still I wait for the sheriff to come knocking on my door, to come home and find the locks have been changed. Still I get harassing letters from the bank threatening to foreclose my ‘loan’. It will never end.

    • Bobbi Swann says:

      Mark – OMG! Please tell me that you have an attorney representing you! If you wiped out the mortgage in the BK you must have filed a Chapter 7 to include the home and that would be the end of it. They would have filed for foreclosure and taken the home. Because of the BK you would not be held responsible for the mortgage or payments or anything once the BK was discharged. Are you telling me that they have not filed the foreclosure action? You should be consulting an attorney (and not the BK attorney). Your Trustee in the BK should be held accountable as well. What state are you in? This is unbelievable that this is happening to you….

      • Mark Grayson says:

        Yes. Chapter 7. Filed March 18, 2008. Discharged June 25, 2008. For the first couple of years I would call the bank every month and ask them to foreclose. I wanted the house out of my name so I could get a fresh start. They never once told me there was a case in litigation. I had no idea how it worked. I figured the bank would march right down to the courthouse and walk out with the title 15 minutes later. I didn’t realize the house would sit in my name for the next 7 years. Can you imagine the condition of the house after sitting empty and being vandalized by the local neighborhood kids. I’m so lucky no one was hurt on the property. It is the corner in the neighborhood where the school bus stop 4 times a day. In addition there is a day care across the street. How careless to leave the house unattended and open to vandals, to not keep up the yards and just let it sit in my name so they wouldn’t have any of the liability. Now the Florida court says they have 35 years to come along at their convenience, after they have already accelerated years ago, to walk in anytime they please and take the house back. That’s Communism. I thought we lived in a free country and we’re protected by a judicial system that played by the rules. I do have an attorney, yes. But I don’t have any confidence in him. He’s from Tampa. He sounded good until I gave him his retainer and then he seemed to lose interest quickly. It is his opinion we should wait until ‘they’ make a move. He has a blog but I think it’s just a recruitment tool. Honestly I am beginning to think I should represent myself. I haven’t been able to find an attorney who has a clue as to how all this works with the Statute of Limitations defense. None that have given me the least confidence that we can walk into a courtroom and walk out victorious. To me it seems open and shut. They accelerated my loan nearly 7 years ago. I stepped aside so they could foreclose. I surrendered the house. I did not use the situation for my own gain or benefit. I did not impede them in any way or try to make it difficult. They dropped the ball. I believe it’s because they don’t have the paperwork necessary to foreclose and until they can manufacture it they are between a rock and a hard place. They did try once. David Stern ‘ case is a joke. You can tell the assignments were forged and the allonges was manufactured after the fact. Everything was robo-signed. It was thrown out of court by a very astute judge. In January 2014 I got an acceleration warning from the new servicer giving me 30 days to catch up the loan. It is now May 2. Nothing.

    • Bobbi Swann says:

      ALL states regardless if judicial or non-judicial, must have a mortgage or Deed of Trust on public records in order to foreclose. At the purchase of the home from the family member was it an actual purchase using a lender or was it a cash sale or was it just a Deed filed? How do you know there wasn’t already a mortgage outstanding on the property? If there was and it was not paid off at the Deed transfer it would still be a valid debt, regardless of who takes title. That’s why you always have a title company or an attorney issue title insurance.

    • Mark Grayson says:

      For this decision to hold any merit the court would have to require the bank to file a formal ‘rescission of acceleration’ with the court and show a ‘willingness’ to once again accept monthly payments. Since the acceleration is usually ‘announced’ via Lis Pendens ….and the bank is no longer willing to accept anything less than ‘payment in full’ it is only fair for the homeowner to expect a formal rescission by way of a court filing in order to stop the Statute of Limitations. Furthermore the bank must be required to show a willingness to once again accept individual monthly payments and apply them to the home owner’s intended target…not to previously missed payments, past penalties and interest. Fair is fair. Furthermore this twisting of the Statute should only apply from this point forward. It should not apply to any case that has already exceeded the Statute of Limitations. Banks should not be able to hold people hostage indefinitely. 30 years is a long time and people’s circumstances change. Banks should not be able to wait for years or decades until it is ‘convenient for them’ to walk in and take possession or avoid liability and maintenance costs by letting properties sit empty for years being vandalized and bringing down neighboring property values in the name of the defaulting homeowner. They should not be allowed to loan money on more properties than they can ‘carry’ in case of default and 5 years is not an unreasonable amount of time to be expected to conclude a foreclosure. Where the heck are the decent defense attorneys?

  4. Alec the Ross says:

    What happens if you have a promissory note that that says it is due upon demand from the lender? The lender sends you a notice demanding payment, but doesn’t file suit for 7 years later. According to this court’s opinion, the lender can send you a new demand letter 7 years later and successfully sue you. If you raise the defense of statue of limitations, the lender can reply that he cancelled, in his own mind, the previous demand letter he sent you 7 years ago so that he is now good to go to sue you 7 years later. If a bank sends you an acceleration letter, that is when the statue of limitations should start running because that is when the bank decided the loan matured.. A lawsuit is simply to enforce the previously declared acceleration. Otherwise, it looks like a bank can constantly cancel its previously declared accelerations to never have the statue of limitations run until the last payment was “ordinarily” due. Only if new payments are made after the original acceleration occurred should toll the statue of limitations ……indeed, Florida Statue specifically provides that new payments toll the running of the statue of limitations.

    • Exactly. Wait until unsecured creditors realize this. Any past due debt will be collectable forever as long as they send out a monthly statement claiming a new payment is due.

    • triumphant says:

      If the PRINCIPLE and interest, etc., etc. was previously accelerated, then shouldn’t the PRINCIPLE as well as interest, etc., be barred by SOL in any subsequent action, and there could then be no subsequent basis for “default”? I mean, “default” on WHAT? – a time-barred debt of PRINCIPLE?

      The 5th DCA’s unsound reasoning appears to have essentially created a new tolling mechanism; arguably, it would be equally applicable to ALL collection actions on claimed debts based on contracts that are ALSO (like mortgage foreclosures) supposed to be time-limited by statute. Therefore, the 5th DCA has indeed done Florida consumers wrong by gifting ALL debt collectors (based on written contracts) the ability to circumvent the state’s SOL statutes by simply sending out a fresh demand for payment very five years. It is already apparent that “banks” are purporting to “accelerate” the same claimed debt that was previously accelerated by itself or some previous “bank.” And since often times the foreclosure action itself is the “notice of acceleration,” stay tuned for an explosion of foreclosure filings based on what should be stale claims barred by SOL.

      SOL is NOT the same as res judicata, which the Supremes had said may not NECESSARILY apply to mortgage foreclosures, but which the 5th DCA reads as “does not apply” in mortgage foreclosures.

      Florida’s pro-consumer groups (if they exist at all) – who apparently stand silent on the sidelines throughout the past six years of this foreclosure mess in the judiciary – need to WAKE UP and voice their outrage over this blatant judicial activism by the 5th DCA.

  5. nephilim1 says:

    When are the Waysliks and Tom Pycraft, the big-time foreclosure defense lawyers for the homeowner, going to come out and explain how they screwed this case up so badly? I mean seriously these guys are always preaching against homeowners arguing their own cases because it could result in bad DCA case law. How could the homeowner done any worse? How do these three lawyers lose on SOL, Res Judicata and a new default every month ALL in one case?

  6. Tom Heinrich says:

    The solution rests with the FLORIDA LEGISLATURE…who, right now, are in the pockets of the banks, their benefactors.

    btw – the Florida Supremes are VERY anti-consumer, pro-bank… no chance they would rule against their banking buddies.

    TRUTH BE TOLD – it is the PUBLIC POLICY of the PEOPLE of Florida that a creditor has FIVE years to go after what it says it is owed…PERIOD.

    This incredibly BAD Opinion is BAD LAW. ONE MORE REASON we must ALL work together in this battle to subdue and throw out the bad laws and bad folks that oversee them. If we want CHANGE, it has to be a change of WHO IS IN CONTROL right now. November awaits.

    Recruit others…its the most effective thing you can do. Lobby the legislature…their 60 day work year is almost over. Gov Scott can order them back…and he should. Ever since this mess began in 2007, Florida has been going backwards and consistently disadvantaging consumers big time….people in Florida are regarded as idiots by legislators and judges, and by most attorneys. Until we speak up and toss them OUT – they are RIGHT…we let them get away with fleecing us left and right. HOW DO YOU LIKE PAYING PRIVATE FIRMS FOR DRIVING IN TAXPAYER PAID SUNPASS LANES AND THE TURNPIKE. Just ANOTHER proof.

    WATCH WHAT HAPPENS TO YOUR COUNTY HEALTH SYSTEMS…they are about to become PRIVATE, FOR PROFIT. Wake up folks…we’ve been electing thieves to office.

  7. a flawed legal opinion, for if it stands, then what happens to installment loans/credit card debt, etc? I believe this will be reversed.

  8. Garbage decision says:

    When a mortgage is accelerated, the entire principal becomes due and the mortgagee forfeits the right to re-accelerate future payments by accelerating unless de-acceleration occurs by cure, agreement or modification.

    Read Travis v. Mayes 160 FL. 375, 36 So. 2d 264, 265-66 (Fla. 1948) (where mortgage contained automatic acceleration clause, statute of limitations began to run immediately upon default.

    When the note secured by a mortgage contains an optional acceleration clause, the foreclosure cause of action accrues, and the statute of limitations begins to run, on the date the acceleration clause is invoked or the stated date of maturity, which ever is earlier. See Smith v. FDIC 61 F, 3d. 1552, 1561 (11th Cir. 1995); See Monte v. Tipton, 612 So 2d 714, 716 (Fla. 2d DCA 1993) (mortgage foreclosure action cause of action accrued, and five-year statute limitations began to run, when optional acceleration clause was invoked. Locke v. State Farm Casualty and Co. 509 So. 2d 1375, 1377 (Fla. 1DCA 1987)(Statute of limitations began to run at the time of acceleration rather than at the time of the stated maturity; Conner v. Coggins, 349 So. 2d 780, 782 (Fla. 1st DCA 1977) holding that statute of limitations on a foreclosure action does not begin to run until the last payment is due, unless the mortgage contains an acceleration clause.

    • Bobbi Swann says:

      @ Garbage – all Fannie and Freddie docs contain the acceleration clause that is automatic when a default occurs. It details the requirements for cure of default and the time frames for such. So, therefore, when a lender accelerates the mortgage it is bringing the last payment due (which is the ‘final’ payment due on the mortgage) to the present time. If you do a modification of that mortgage more than likely the banks are smart enough to also modify the acceleration clause as well so in fact you are starting over. Why do you think so many lenders want you to do modifications, huh? It’s the perfect instrument to put time aside and the opportunity for the clock to start over. They have no intentions of abiding by those modifications, as we have already seen and a way for them to collect more fees and costs and still be able to declare a default and put you back into the foreclosure court. Remember, too, that a default letter MUST come from the lender, not a servicer or an attorney representing the lender due to the specifics of the acceleration clause within the mortgage!

  9. Devildawg says:

    I think filing with SCOTUS is in order… they don’t get to change existing law & preexisting cases just to suit the banks. Nice try now file with SCOTUS!

    • neidermeyer says:

      This is beyond outrageous, I was counting on the 5 year SOL as I have my “lender” boxed in with proof of payment by another party and am waiting them out to dismiss as they refuse to move… This MUST be sent to the FL Supreme Court ,, this appeals court has re-written existing law in a blatantly prejudicial way.

  10. Bill says:

    I would almost understand the reasoning for loans that were not accelerated but the Appeals court found that the accretion did not matter. Makes no sense. If the loan is accelerated you then owe the entire amount, there are no future payments. So how could a subsequent action be taken on a mortgagor who no long owes any money. Additionally if I understand this correctly the note was cancelled so no money was owed during that time period. Therefore, further defaults didn’t occur. The only conclusion I can come to is as Bobbi said the court was in someone’s pocket. This seems to be failed reasoning and logic.

  11. Bobbi Swann says:

    This was an opinion of the Florida Appeals Court for St. Johns County. You mean to tell me that this cannot be taken to the State Supreme Court as well? So…who got paid off if in fact the note and mortgage was cancelled by the court and then on appeal it was reversed? This is beyond outrageous…this is utter control by the banking institutions over the justice system and a closer move to a non-democratic society. THIS is exactly why I believe all judges need to be ‘elected’ for shorter terms (6 yrs now) and not selected by any such Governor or some commission that has no accountability to the citizens. What is the statute of limitations for if this allows them a continual pass to consistently chop the justice system to meet their own needs? I think, Mr.Ice, that there should be a ‘drive’ or ‘fund raisers’ held to cover the costs to have this taken to the Supreme Court. This is a decision that will effect us ALL who are fighting for our rights!

  12. Need Information says:

    In a non-judicial state can a servicer begin foreclosure if he does not have a recorded Deed of Trust? County register shows no lien or Deed of Trust was ever filed on a home. Now the servicer claims they are owed for a default mortgage. In order to collect what they claim they are owed will they have to go through legal suit to collect and prove their lien? The homeowner purchased the house from a family member over 10 years ago and there is no lien or Deed of Trust recorded since.

  13. Fossil Rock says:

    This only applies to cases where there is no ‘acceleration clause’ or the option was not exercised.

    • Fossil Rock says:

      I might add … F.S. 1.420(b) – Involuntary Dismissal.

    • “This only applies to cases where there is no ‘acceleration clause’ or the option was not exercised.”

      Re-read the opinion again.

      That is not correct.

      From page 3 of the opinion…

      In May 2006, the Bank filed a foreclosure suit against Bartram. The Bank alleged it had fulfilled all conditions precedent to acceleration of the note, and it accelerated all payments due.

      • Evan Rosen says:

        I think the court might know exactly what it is doing… it’s called “sophistry” http://www.merriam-webster.com/dictionary/sophistry

        the gaps in logic in that opinion are large enough to drive a truck through.

      • Bobbi Swann says:

        Sophism is the common language of ALL politicians and they know it all TOO well! And don’t think for a minute that Judges are not politicians. I keep saying this over and over again, the people of the state of Florida (and anywhere else that it would apply) need to have the terms and elective process for judges revamped. Terms should be limited to the same as Congressional reps, 2 years, not for the 6 yr term. They should all be elected officials and not ‘given’ the post by some gubernatorial committee that is composed of all practicing attorneys! If you want to cut the payoffs in the judicial system you got to cut the source. With the longer terms it allows those buddy-buddy relationships to form and the greater chance of bribery and fraud. We already know that those ‘campaign contributions’ are nothing but bribes.

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