"New" Things Required to Bring a Second Foreclosure Action

May a second foreclosure action be brought after a first foreclosure action was dismissed and the statute of limitations has expired on the cause of action upon which the first action was brought? Apparently, based on the Florida Third District Court of Appeal's recent decision in Deutsche Bank Trust Company Americas, etc. v. Harry Beauvais, et al., Case No. 3D14-575, the key is something "new."

"New" Things

A "new" second foreclosure action may be brought upon a

1.  a "new" mortgage note installment payment
2.  upon which there is a "new" default and optional acceleration
3.  upon which a "new" cause of action arises 
4.  brought before its "new" five year statute of limitations periods expires

Deceleration

After acceleration, "new" mortgage note installment payment can come due only if the mortgage note is "decelerated." If the first foreclosure case was dismissed "with" prejudice, there is an indication that the default and acceleration never happened in the first instance (or the dismissal otherwise decelerates the mortgage note). 

The Court makes reference that deceleration may be effected by an "affirmative act" by the lender or holder of the note. Such affirmative acts include contractual reinstatement or modification by the parties. The decision make reference to the notion that deceleration make also be effected by revocation, which may or may not require a contractual provision in the mortgage note allowing such. 

Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com