STATUTE OF LIMITATIONS ARE TRICKY IN FORECLOSURE CASES

iStock_000003118029XSmallBy Omar J. Arcia
Foreclosure Defense and Consumer Bankruptcy Attorney

 

            Perhaps the hottest topic in foreclosure cases at the moment is the proper application of a statute of limitations defense. The laws that set deadlines by when lawsuits must be filed are called statutes of limitations. Different deadlines exist for different types of lawsuits, and they vary by state. If properly asserted, a statute of limitations defense can prevent a creditor from obtaining a judgment against you even if you owe the money! In Florida, there is a five year statute of limitations to file a foreclosure case, and a one year statute of limitations for a deficiency judgment after foreclosure against a homeowner. The tricky question for Florida homeowners is when does the statute of limitations begin to run?

 

            According to Florida law, the 5 year statute of limitations on a foreclosure action begins to run from the date of default (i.e., date of last payment). Generally, it runs continuously, unless the homeowner makes additional payments or files for bankruptcy. These scenarios temporarily suspend the running of the statute of limitations. However, if the mortgage holder sues for foreclosure more than five years after the alleged “default date,” a homeowner may be able to successfully dismiss that action. This issue is currently under consideration by the Florida Supreme Court because lenders claim that each month a payment is not made is a new default date which “resets” the statute of limitations. If they have their way, mortgage holders and lenders could technically be immune from complying with Florida’s 5 year statute of limitations.

 

            A deficiency judgment is a claim against a borrower for the difference between the amount owed under the loan and the amount for which the property was sold at a foreclosure auction. In Florida, the statute of limitations for deficiency judgments resulting from foreclosures on or after July 1, 2013 is just one year. The time period begins to run the day after a certificate of title is issued by the court clerk. If the property was sold before July 1, 2013, then the statute of limitations is the earlier of five years or July 1, 2014. Any deficiency judgment action commenced after these time frames will be dismissed.

 

         Defending a foreclosure, deficiency judgment and filing for bankruptcy are NOT do it yourself propositions. The attorneys at the Arcia Law Firm are privileged to successfully represent hundreds of homeowners in our community. We have foreclosure defense, loan modification and bankruptcy departments all within the same office. We will gladly refer you to our satisfied clients so you can be confident in your decision to hire our Firm. If you are struggling to make your monthly mortgage payments, if you are in the middle of a frustrating loan modification process, or if you just received a foreclosure summons, contact the Arcia Law Firm today at 954-437-9066 to schedule a free personal consultation with Omar Arcia, or visit www.arcialawfirm.com to schedule your appointment online.

 

            Detailed explanations of different options available to homeowners are also discussed in a new DVD developed by the Arcia Law Firm entitled “Fight For Your Home.” If you mention that you heard about the DVD through this blog post, you will receive a complimentary copy during your free consultation to discuss your case in detail.

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