I went into default on my mortgage in July 2008. In May 2009 a foreclosure suit was brought against me. The suit is still active today and it could end in my favor via either a motion to dismiss or SJ. Lets say that happens, how does the 5 year statute of limitations work? Would the bank still have time to sue again or is July 2013 when the SOL kicks in?
The statute of limitations in the context of a foreclosure would begin from the acceleration of the note. If the current law suit is dismissed, the 5-year statute of limitations could kick in from the date of the notice.
However, there are some cases coming out of the appellate courts that subsequent notices of acceleration can be issued. I do not agree with that concept, but the court system has seen many strange theories of late when it comes to foreclosure matters.
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Recent case law has held that a bank can voluntarily dismss the action and bring it again, if the defendant has not been affected by the dismissal! Here is pdf of the Florida Supreme Court decision: http://www.floridasupremecourt.org/decisions/2013/sc11-697.pdf
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. Leonore M. Greller, Esq. is a Supreme Court Certified Civil Circuit and Family Mediator and a Qualified Residential Mortgage Foreclosure Mediator and Arbitrator.
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The statute of limitations is 5 years from the date of acceleration. However if acceleration was attempted by a party lacking standing to have done so, the statute of limitations has not begin to run. If a suit is commenced and then dismissed or otherwise disposed of and if more than 5 years has passed since acceleration, it may be possible to successfully defend a new foreclosure by that same plaintiff or another plaintiff claiming through the original plaintiff. However you should discuss the particular facts and details of your case with a knowledgable foreclosure litigation attorney.
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
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