Lender accelerated mortgage/note in July of 2008 and filed complaint 1 week later. Complaint contained a count to re-establish lost note. The action was dismissed in May of 2011 because plaintiff failed to appear at trial set by judge. The statute of limitation that applies to re-establish note is 4 years. I just received another acceleration letter in the mail. Can I move to dismiss the complaint when it is filed because statute of limitation expired on re-establishment of note? If lender is barred from re-establishing note, can it still foreclose?
I won't know if the Plaintiff found the original note until it files the new foreclosure case. In the 2008 case, plaintiff said the note was lost or destroyed.
Does the Plaintiff have the original note?
You certainly may have an argument that the time has expired. However, it will depend in large part as to what is stated in the note and mortgage, and a court's interpretation of such language. Mortgage lenders generally argue that the dismissal of their action, whether voluntary or not (unless decided on the merits), results in a de-accellerating their demand for payment. I cannot say that I have seen any case law on this issue, but I have given opinions before after reading the language in more modern mortgages, which I have interpreted to be "deaccelleration" provisions. The bank may also argue that they only lost the right to pursue you personally, should the statute serve to bar the note, and that they still have a mortgage lien to foreclose. This is a complicated issue that requires review of the documents.
The law is complicated and although the facts expressed may seem to be all that is relevant, there may be many other important facts to consider. Also, the law is constantly undergoing change, so what may be correct today, may not be accurate tomorrow. Only a full consultation with an attorney experienced or knowledgeable in the specific legal subject matter is likely to result in the optimal course of action. My practice has entailed more than a 30 year span of many real estate, personal property, and bankruptcy issues. Find out more about me at: FloridaPropertyLitigation.com.
There is a statute of limitations of five years to foreclose on a note and the five years starts when the mortgage is accelerated. Absent any argument the court may entertain on "deceleration," the bank has until July of 2013 to re-file a new foreclosure. Issuing a new acceleration letter does not start the clock again, which is what they are attempting to do at this point.
If you are served, hire an experienced mortgage foreclosure defense lawyer.
This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. The Law Offices of Stage & Associates practices state-wide and represents homeowners and community associations. Please visit our website at www.stagelaw.com.
The statute of limitations is 5 years from the date of acceleration, not four years. Further, if the bank found the note, it may file an action without a count for reestablishment of the note.
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