On March 16, 2017, the Florida Supreme Court solidified the position of its November 3, 2016 opinion in Bartram v. U.S. Bank, N.A., SC14-1266, 2016 WL 6538647 by denying the motions for rehearing filed in response to the Court’s holding that an involuntary dismissal unwinds acceleration, returning lender and borrower to their previous positions and allowing lender to pursue foreclosure on future defaults. The finality of the Bartram opinion brings relief and some clarity to many residential lenders, especially with standard form residential mortgages with reinstatement provisions, that a failed attempt at foreclosure will not bar subsequent attempts to foreclose for missed installment payments.
While Bartram provides relief for Florida lenders, the battleground over the statute of limitations on Florida mortgage debt continues to shift. Even before the Court denied rehearing, the foreclosure defense bar was already crafting new defenses based on the gaps in the law left unfilled by the Bartram opinion. For instance, in new foreclosures filed after an involuntary dismissal, some borrowers are challenging the use of default dates that predate the dismissal date for the earlier foreclosure suits. Lenders should expect borrowers with continuing defaults and prior foreclosure lawsuits to challenge subsequent foreclosures on the collectability of time barred installment payments, Collazo v. HSBC Bank USA, N.A., No. 3D14-2208 (Fla. 3d DCA Apr. 2016)(withdrawn on rehear’g) and time barred default dates. Bollettieri Resort Villas Condo. Ass’n, Inc. v. Bank of New York Mellon, 198 So. 3d 1140 (Fla. 2d DCA 2016), review granted, SC16-1680 (Fla. Nov. 2, 2016).