Can lender foreclose after 4 year statute of limitation to re-establish note expired?

Asked over 1 year ago - Miami, FL

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?

Additional information

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.

Attorney answers (4)

  1. Joshua Jonathan Tejes

    Contributor Level 11

    2

    Lawyers agree

    Answered . Does the Plaintiff have the original note?

  2. Rex Edward Russo

    Pro

    Contributor Level 14

    1

    Lawyer agrees

    Answered . 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... more
  3. Barbara Billiot Stage

    Pro

    Contributor Level 19

    1

    Lawyer agrees

    Answered . 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... more
  4. Natalie F Guerra-Valdes

    Contributor Level 13

    1

    Lawyer agrees

    Answered . 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.

    The hiring of a lawyer is an important decision that should not be based solely upon advertisements. The... more

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