ExpertLaw.com Forums

Is There an Statute of Limitations on a HELOC That Hasn't Been Paid in Over 5 Years

Printable View

  • 08-05-2014, 01:10 PM
    Peewee7829
    Is There an Statute of Limitations on a HELOC That Hasn't Been Paid in Over 5 Years
    My question involves a mortgage in the state of: Florida, i have a heloc on my property and have not paid it in over 5 years,,the bank has never send an accelleration letter or has file for foreclosure, in my credit report it says closed and transfer. My concern is, can they still foreclose?
  • 08-05-2014, 02:59 PM
    Disagreeable
    Re: Is There an Statute of Limitations on a HELOC That Hasent Been Paid in Over 5 Yea
    The HELOC should have provision where it turns into a mortgage. They have a lien secured by the value of your property. Continuing to increase their equity due to interest and fees is too their benefit.
  • 08-05-2014, 03:38 PM
    adjusterjack
    Re: Is There an Statute of Limitations on a HELOC That Hasent Been Paid in Over 5 Yea
    The FL statute of limitations is 5 years.

    Unfortunately, even though the time for foreclosure has past, there is still a lien on the property.

    If you ever want to sell or refinance, the lender will not release the lien without you paying off the loan, the balance of which will then likely be astronomically higher than it is now.
  • 08-05-2014, 05:51 PM
    jk
    Re: Is There an Statute of Limitations on a HELOC That Hasent Been Paid in Over 5 Yea
    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:1. Rerecords the mortgage and includes a copy of the obligation secured by the mortgage so that the final maturity is ascertainable; or
    2. Records a copy of the obligation secured by the mortgage from which copy the final maturity is ascertainable and by affidavit identifies the mortgage by its official recording data and certifies that the obligation is the obligation described in the mortgage;
    in which case the lien shall terminate 5 years after the date of maturity.
    (c) For all obligations, including taxes, paid by the mortgagee, 5 years from the date of payment. A mortgagee shall have no right of subrogation to the lien of the state for taxes paid by the mortgagee to protect the security of his or her mortgage unless he or she obtains an assignment from the state of the tax certificate. Redemption of the tax certificate shall be insufficient for subrogation.

    (2) If an extension agreement executed by the mortgagee or the mortgagee’s successors in interest and the mortgagor or the mortgagor’s successors in interest is recorded, the time shall be extended as follows (a) If the final maturity of the obligation, as extended, secured by the mortgage is ascertainable from the record of the extension agreement, 5 years after the date of final maturity of the obligation as extended.
    (b) If the final maturity of the obligation, as extended, secured by the mortgage is not ascertainable from the record of the extension agreement, 20 years after the date of the extension agreement, unless prior to such time the holder of the mortgage:1. Rerecords the mortgage and includes a copy of the obligation, as extended, secured by the mortgage so that the final maturity is ascertainable; or
    2. Records a copy of the obligation, as extended, secured by the mortgage from which copy the final maturity is ascertainable and by affidavit identifies the mortgage by its official recording data and certifies that the obligation is the obligation described in the mortgage;
    in which case the lien shall terminate 5 years after the date of maturity as extended.

    (3) If the record of the mortgage shows that it secures an obligation payable in installments and the maturity date of the final installment of the obligation is ascertainable from the record of the mortgage, the time shall run from the maturity date of the final installment.
    (4) The time shall be extended only as provided in this law and shall not be extended by any other agreement, nonresidence, disability, part payment, operation of law, or any other method.
    (5) This section does not apply to mortgages or deeds of trust executed by any railroad or other public utility corporation or by any receiver or trustee of them or to liens or notices of liens under chapter 713.
    History.—ss. 1-7, ch. 22560, 1945; s. 1, ch. 29977, 1955; s. 18, ch. 74-382; s. 1, ch. 77-174; s. 4, ch. 83-267; s. 3, ch. 83-311; s. 527, ch. 95-147.
    Note.—Former ss. 95.28-95.32.
  • 08-06-2014, 01:58 PM
    Peewee7829
    Re: Is There an Statute of Limitations on a HELOC That Hasent Been Paid in Over 5 Yea
    Thanks jk, that to much info. For me,lol. Do u think they dont have the right to foreclose after 5 years? I know i owe the money,,i am going to try to settle with them so they can release the lien,i just want to make sure i can negotiate and not have them foreclose? Thanks

    - - - Updated - - -

    Thanks

    - - - Updated - - -

    Thanks adjusterjack, so it would be safe for me to try to negotiate the amount due,since am no longer in a threath for foreclosure? Or would this comunication restart the sol? They have transfer the loan to a collection agency,,the collection agency is Welling to settle for half of the amount due, but if i pay the collection agency will the lien be release? I really appreciate your help.
  • 08-06-2014, 02:20 PM
    adjusterjack
    Re: Is There an Statute of Limitations on a HELOC That Hasent Been Paid in Over 5 Yea
    Sorry, it appears from the statute that my answer was incomplete and that it's 5 years from the maturity date of the HELOC. If you have a 15 year HELOC you add 5 years to that.

    So, yes, they can foreclose. However, HELOC lenders almost never foreclose since the real estate crash because the property value is often less than that of the first mortgage and they know they'll be wasting their time and money because they won't see a dime from a foreclosure.

    If you settle for half the balance with the collection agency, make sure you get a written agreement that the settlement is full and final and that the lien will be released.

    I suggest you hire an attorney to handle the transaction for you.
All times are GMT -7. The time now is 09:21 AM.
Powered by vBulletin® Version 4.2.4
Copyright © 2023 vBulletin Solutions, Inc. All rights reserved.
Copyright © 2004 - 2018 ExpertLaw.com, All Rights Reserved