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Mortgage Foreclosure Action Barred by Statute of Limitations Based On Prior Involuntary Dismissal Without Prejudice

D.N.J. Nov. 5, 2014) that the mortgagee and mortgage servicer (“the creditors”) are time-barred. refile a foreclosure action if a prior foreclosure complaint was dismissed without prejudice,

The statute of limitations on a mortgage foreclosure action is governed by CPLR 213(4), which provides that the action must be commenced within six years.

The opinion states, "the mortgagee, also referred to as the lender, was not precluded by the statute of limitations from filing a subsequent foreclosure action based on payment defaults occurring subsequent to the dismissal of the first foreclosure action, as long as the alleged subsequent default occurred within five years of the subsequent foreclosure action" [emphasis added].

Dismissal "with prejudice" vs. "without prejudice" explained No. 14-20759-CIV, 2014 WL 3742141, at *1 (S.D. Fla. July 29, 2014), the federal district court – 17 – dismissed a complaint that sought a declaration that the statute of limitations barred foreclosing on a mortgage after a prior foreclosure action where the mortgagee had sought acceleration of the note that had been dismissed.

finding that (i) the action was barred by the statute of limitations because it was filed more than five years after the Initial Action in January 2007; and (2) the mortgage was null and void. On appeal, Deutsche ank argued the involuntary dismissal effectively "decelerated" the loan and

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The issue of whether subsequent foreclosure actions can be barred by the statute of limitations when an initial action is dismissed with or without prejudice remains unsettled in Florida.

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In support of his motion, the Defendant argues, inter alia, that this action must be dismissed on the grounds that the applicable statute of limitations expired prior to the commencement of this.

Accordingly, the only remaining question is whether the refiled mortgage foreclosure action is predicated on the same underlying defaults as the dismissed action was. If so, and the applicable five-year limitations period has run, then regardless of whether the dismissal was with or without prejudice, the complainant is at the end of its road.

Currently, the Florida Supreme Court is considering whether a subsequent foreclosure action can be barred by the statute of limitations when the initial action is dismissed with prejudice.

Recounting the relevant facts, wells fargo initiated a foreclosure action. the three prior rulings against Wells Fargo. On appeal, the Court found that the trial judge abused its discretion; it.

mortgage Mortgage: A mortgage is a debt instrument , secured by the collateral of specified real estate property, that the borrower is obliged to pay back with a predetermined set of payments. Mortgages.