Florida Statute of Limitations in Promissory Notes

My question involves court procedures for the state of: Florida.

If a foreclosure case had been voluntary dismissed and is NOT re-filed into the 5 years since the initial default,the SOL apply?

We would have no reason to believe, based upon that tiny amount of information, that the note does not remain secured by the mortgage. Do you have facts to share?

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Quoting gkuenca

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My question involves court procedures for the state of: Florida.

If a foreclosure case had been voluntary dismissed and is NOT re-filed into the 5 years since the initial default,the SOL apply?

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what SOL? Even if the creditor were not able to obtain a judgment in court, that doesn't mean they can't take the house due to having a security interest in the property.

House bought in 2005;default in July 1st. 2007;foreclosure filed in 2008;after many fighting with the Bank including many attend of modifications,the Bank decide file voluntary dismiss accepted by the court December 2011.
Currently,I'm not in foreclosure,negotiating a modification under the National settlement.
July 1st will be 5 years since default.
My lawyer say that after July 1st the creditor still can look for the debt,but not with the house.
I saved 3,500/mo during 5 years ready to pay to who probe be my creditor.

so, the house was not foreclosed. I'm not seeing why you believe it is safe. The original mortgage lien would still be in place.

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My lawyer say that after July 1st the creditor still can look for the debt,but not with the house.

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actually, if there was a SOL issue here, it would allow for exactly the opposite. If the debt was beyond the SOL they could not use the courts for that but they can still foreclose on the house.

what, you think simply because you didn't make a payment for 5 years you get the house free and clear?

Until the security interest is released, they can take the house if they do not get the money you promised to pay when pledging the house as collateral.

I didn't made payments because the entity that require it is NOT the one which I sign the loan and never probe sufficiently that have the right for.
I said that I save in a special saving account the money for EVERY SINGLE MONTH ready to pay to my probed creditor.
I NEVER mentioned that I want a free and clear house.

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gkuenca;630048]I didn't made payments because the entity that require it is NOT the one which I sign the loan and never probe sufficiently that have the right for.

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what???!?!?!

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I said that I save in a special saving account the money for EVERY SINGLE MONTH ready to pay to my probed creditor.

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You have a current creditor you need to be paying.

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I NEVER mentioned that I want a free and clear house.

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we all do. That is why we pay out mortgage loans so one day, it will be ours free and clear.

I don't understand half of what you posted in this last thread but it sounds like you are well on your way to losing your house. Then you can use all your savings to go out and try to buy another one. With a credit history like you are bound to have plus a foreclosure on your record, good luck finding anybody to give you a mortgage loan.

It's nice for the lender that you've been saving all of that money. That way when they foreclose and then get a deficiency judgment, you'll be able to pay it.

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Quoting jk

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actually, if there was a SOL issue here, it would allow for exactly the opposite. If the debt was beyond the SOL they could not use the courts for that but they can still foreclose on the house.

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I think the reference is to this:

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Quoting Florida Statutes, Sec. 95.11. Limitations other than for the recovery of real property.

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Actions other than for recovery of real property shall be commenced as follows:

(1) WITHIN TWENTY YEARS. - An action on a judgment or decree of a court of record in this state.

(2) WITHIN FIVE YEARS. -

(a) An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.

(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of ss. 255.05(10) and 713.23(1)(e).

(c) An action to foreclose a mortgage.

(d) An action alleging a willful violation of s. 448.110.

(e) Notwithstanding paragraph (b), an action for breach of a property insurance contract, with the period running from the date of loss.

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Quoting Houck Corp. v. New River, Ltd., Pasco, 900 So.2d 601, 603 (Fla. 2d DCA 2005) (emphasis added)

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The limitations period provided in section 95.11(2)(c) does not affect the life of the lien or extinguish the debt; it merely precludes an action to collect the debt after five years. Section 95.281(1)(b), conversely, establishes an ultimate date when the lien of the mortgage terminates and is no longer enforceable. Section 95.051, Florida Statutes (2002), sets forth the times when the limitations period under section 95.11 is tolled, but expressly excludes section 95.281. Thus it is clear that section 95.11(2)(c) operates as a statute of limitation while section 95.281(1)(b) operates as a statute of repose. While the duration of a lien is determined by section 95.281(1)(b), section 95.281(1)(b) does not constitute a bar to the filing of an action to foreclose the mortgage unless it causes the lien to terminate before the statute of limitations under section 95.11(2)(c) has expired.

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Should you successfully renegotiate your debt, that would be a novation - a new contract over the same debt.

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While the duration of a lien is determined by section 95.281(1)(b), section 95.281(1)(b) does not constitute a bar to the filing of an action to foreclose the mortgage unless it causes the lien to terminate before the statute of limitations under section 95.11(2)(c) has expired.

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since that is a section the specifically excludes the reclamation of real property, one must presume that even if it would prevent the claim to the loan secured by the property, it does not preclude an action to recover the property itself, correct?

which is exactly what I stated above. They cannot take action to recover the money but they can foreclose the mortgage to recover the property.

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95.281 Limitations; instruments encumbering real property.

(1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage, except those specified in subsection (5), shall terminate after the expiration of the following periods of time:
(a) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturity.
(b) If the final maturity of an obligation secured by a mortgage is not ascertainable from the record of it, 20 years after the date of the mortgage, unless prior to such time the holder of the mortgage:

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so, if I read that correctly, the 5 year limit does not bar the foreclosure to recover the property. Then, since the section I posted provides the time limit for maintaining the lien itself, I'm not seeing why the bank could not foreclose on the lien to recover the property.

beyond that, if the OP thinks he is going to get new money without the current lender allowing their rights of the lien being transferred to the new lender, I believe he is fooling himself. The current lender is not going to release their rights unless they receive what they consider to be adequate compensation. So, old lender doesn't get what they want, new lender is not going to loan money. Old lender can take the house. OP is on the street. The only free house he is getting is the cardboard box he gets from the local appliance store.

am I missing something?

I don't find the statute of limitations to even be internally consistent - a foreclosure action is an action "other than for recovery of real property"? Rather than trying to parse the statutes and review... i'm not sure how much case law... I'll defer to this analysis.

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Quoting Florida Foreclosure Defenses - Statute of Limitations

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The basic principles were set forth in one case: “Section 95.11(2)(c), Florida Statutes (1979), provides that an action to foreclose a mortgage shall be commenced within five years. Section 95.03(1) provides that generally a cause of action accrues when the last element constituting the cause of action ‘on a negotiable or non-negotiable note payable on demand ... is a first written demand for payment.’” Smith v. Branch, 391 So.2d 797, 798 (Fla. 2d DCA 1980), citing Ruhl v. Perry, 390 So.2d 353 (Fla. 1980); see also Jones v. Rainey, 386 So.2d 1319 (Fla. 2d DCA 1980).

For a mortgage without an acceleration clause, an action is timely where the mortgagee files more than five years after default, but less than five years after final maturity. Locke v. State Farm Fire & Cas. Co., 509 So.2d 1375 (Fla. 1st DCA 1987); Conner v. Coggins, 349 So.2d 780 (Fla. 1st DCA 1977); see also Smith v. Federal Deposit Ins. Corp., 61 F.3d 1552, 1561 (11th Cir. 1995) (when promissory note secured by mortgage contains optional acceleration clause, foreclosure action accrues, and statute of limitations begins to run on the earlier of the date when acceleration clause is invoked or stated date of maturity). If the maturity of a mortgage is not ascertainable from the record, the mortgage lien terminates 20 years after the date of the mortgage.

Even before the statute of limitations has expired on a foreclosure claim, the lender can, in exceptional circumstances, forfeit the right to foreclose by virtue of delay and resulting prejudice to the borrower that constitutes laches. Laches can arise in the foreclosure context when the mortgagee inexcusably delays in bringing its action, resulting in circumstances making it inequitable to permit the plaintiff to enforce its claim against the defendant.

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It would thus seem to me that once the five year period set forth in Sec. 95.11(2)(c) expires, the lender cannot use foreclosure to recover the money but will ordinarily still be able to pursue the debt under other theories (such as contract), but the facts can significantly affect when that five year period starts to run.