Bringing a Second Foreclosure Action after Prior Dismissal

May a second foreclosure action be brought after the first foreclosure action has been dismissed - "with" or "without" prejudice? How does the foreclosure statute of limitations come into play? 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 gives guidance.  The following may be how the holdings of this decision would generally seem to direct. 

Generally 

In general, a foreclosure action may be had on a foreclosure cause of action on which the foreclosure statute of limitations has not expired.  A foreclosure cause of action based on a mortgage installment note accrues after default and acceleration. The five year statute of limitations to bring a foreclosure action begins to run upon such accrual. 

Prior Dismissal With Prejudice - Second Action Permitted

If the first foreclosure action had been dismissed "with" prejudice, a second foreclosure action may be brought action with "new" items. 

It would appear, generally, that no  second foreclosure action, after the first was dismissed with prejudice, could ever be possibly be barred by the foreclosure statute of limitations as it never began to run in the first instance. The dismissal "with" prejudice was a "determination on the merits" and indicates that the previously asserted default and acceleration was invalid or ineffective i.e.  it "never happened." 

The second foreclosure action would be based upon these "new" items: 1. "new" mortgage note installment payments coming due, 2. a "new" default and acceleration made, 3. which creates a "new" foreclosure cause of action, 4. commencing a "new" statute of limitations period, 5. to bring a "new" foreclosure action. 

Prior Dismissal Without Prejudice - Generally Can Bring Second Action 
if Brought within Statute of Limitations that Previously Commenced

If the first foreclosure action had been dismissed "without" prejudice, nothing "new" is required as the mortgage note remains in default and accelerated and the foreclosure cause of action is still in existence.  In fact, as the note has already been accelerated, no new payments, default, acceleration, and cause of action can exist. The second action must be filed before the statute of limitations expires.  

Deceleration - Can or Has the Already Commenced Statute of Limitations be Stopped?

The Court makes reference that deceleration of an accelerated mortgage installment note may be effected by an "affirmative act" by the lender or holder of the mortgage note. The affirmative acts referenced include contractual reinstatement or modification by the parties. The decision makes some reference to the notion that deceleration make also be effected by revocation, which may or may not require the existence of a contractual provision in the mortgage note allowing such.  There is also a reference to the concept that dismissal, even "without" prejudice could automatically trigger a deceleration if provided for by the contract. 

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