Under Florida law, the involuntary dismissal without prejudice of an initial foreclosure action did not "decelerate" lender’s acceleration of the debt in the initial action and the statute of limitations continued to run, barring a second action brought after the expiration of the statute of limitations.
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If the involuntary dismissal without prejudice was based on such a finding by the court, this may raise some type of equitable estoppel for the homeowner to take the inconsistent position in the second foreclosure action that there actually had been an acceleration in the first action – without a prior acceleration, there was accrual of a cause.
The Court held that since the dismissal of the first foreclosure action was "without" prejudice, it was not an "adjudication on the merits." and that therefore the lender’s acceleration of the mortgage note remained in place and the statute of limitations continued to run and expired prior to the filing of this second foreclosure action.
Most practitioners are aware of the potential problems and limitations associated with the use of voluntary dismissal without prejudice. Less well known, perhaps, is the limitation on refiling an action after more than one involuntary dismissal without prejudice, particularly in the mortgage foreclosure context.
If the involuntary dismissal without prejudice was based on such a finding by the court, this may raise some type of equitable estoppel for the homeowner to take the inconsistent position in the second foreclosure action that there actually had been an acceleration in the first action – without a prior acceleration, there was accrual of a cause of action and the statute of limitations never began to run.
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Nearly a year after hearing oral argument on the matter, the Supreme Court of Florida affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., SC14-1265 (Fla. Nov. 3, 2016), holding that a lender is not barred from filing a subsequent foreclosure action based on a payment default after a first foreclosure action is involuntarily dismissed, provided that the.
Mortgage Foreclosure Action Barred by Statute of Limitations Based On Prior Involuntary Dismissal Without Prejudice "[T]he statute of limitations on the balance under the note and mortgage would not continue to run after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive.