Wednesday, July 29, 2015

Second Foreclosure Case and Quiet Title Action

A 2013 Florida case dealt with the issue of whether a mortgage remained enforceable after a the dismissal of a foreclosure case and more than five years has passed from the date of the first default in mortgage payments.  The homeowner argued that the five year Florida statute of limitations applied to render the mortgage no longer enforceable.

In agreement  with a number of recent decisions,  the District Court in the case of Kaan v. Wells Fargo Bank, N.A., 2013 WL 5944075 (S.D. Fla. 2013) held  that after the dismissal of a foreclosure case, with or without prejudice,  a mortgage remains a valid and enforceable lien on the property and a lender is not barred from filing a second foreclosure action if the second foreclosure action is based on payment defaults different from and subsequent to those that formed the basis for the first  foreclosure case. As have other courts recently, the Court based its ruling on the Florida Supreme Court's decision in Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004).

Quiet Title Action Dismissed

The Court dismissed the homeowner's "quiet title" action in which he sought to obtain a court order determining that the mortgage was no longer enforceable after the dismissal of the foreclosure case as more than the fiver year period had passed. The Court dismissed the homeowner's quiet title action pursuant to Fed. R. Civ. Pro. 12(b)(6), holding that as a "matter of law," the homeowner could not state a claim based on plausible facts "actual, apparent, or potential", that his title to the land was at issue or show that a cloud on the title to his home existed as despite the dismissal of the foreclosure case and the passage of five years since his first default in payment, the mortgage note remained valid and the mortgage remained  a valid and enforceable lien against the property.