Second Foreclosure Case Not Barred by Dismissal of First Foreclosure Case

Quit Title Action Dismissed A recent case dealt with the issue of whether a mortgage lender is bared from foreclosing on property due to the passage of more than five years since the first payment default due to the Florida statute of limitation and also whether the dismissal of a first foreclosure action with or without prejudice bars a second case for foreclosure? Although the facts and ruling  in each case may be different, the federal District Court's held in 2013 in the case of Kaan v. Wells Fargo Bank, N.A., 2013 WL 5944075 (SD Fla. 2013) that such a second foreclosure action is not bared if the second foreclosure action is based on payment default different than those in the first foreclosure case and the new defaulted payments are within five years at the time of the filing of the second foreclosure action. The Court in Kaan based its ruling on the Florida Supreme Court's ruling in Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004).

The Court in Kaan dismissed the homeowner's quiet title action pursuant to Fed. R. Civ. Pro. 12(b)(6), holding that in this case, as a "matter of law", the homeowner could not state a claim based on plausible facts "actual, apparent, or potential", that his title to the land was at issue or showing that a cloud on the title to his home existed.  The Court held that the homeowner could not state such a claim as despite the dismissal of the first foreclosure action, as the mortgage note and mortgage remained a valid and enforceable lien against the homeowner's property. The Court further stated that even if the statute of limitations barred foreclosure based on certain payment defaults, the mortgage lien would still be enforceable and a foreclosure action could be pursued based on breaches  or defaults in duties other than the payment requirements.(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications