Florida Foreclosure Statutes of Limitations

The laws that set deadlines for filing lawsuits are called "statutes of limitations." Different deadlines apply to different types of lawsuits. And statutes of limitations vary by state.

Florida law sets deadlines by which creditors, including mortgage lenders and holders, must file suit to collect their debts and foreclose on property. If a lender or holder misses the deadline, it might never be able to enforce the debt.

If you've been unable to make your mortgage payments and your lender or holder hasn't filed a foreclosure action as quickly as you expected, you should learn the statute of limitations to see if the deadline has passed.

What Is the Florida Statute of Limitations for Foreclosure?

In Florida, a mortgage holder can only foreclose on real estate by bringing a lawsuit, which is a process called a "judicial foreclosure." (In some other states, the holder can complete a nonjudicial foreclosure, which means it doesn't have to sue in court.)

If a creditor files a lawsuit against you after the statute of limitations for foreclosure has expired, you can defend the suit by asserting the statute of limitations.

How Can I Challenge a Foreclosure Based on Statute of Limitations?

The expiration of the statute of limitations is an affirmative defense to a lawsuit. So, even if you admit that you owe the money the creditor is suing to collect, you can prevent a judgment from being entered against you by responding and claiming that the statute of limitations bars the suit.

Five-Year Statute of Limitations for Foreclosure in Florida

It is easy to look up how much time the statute of limitations gives a mortgage holder to foreclose in Florida (five years), but it gets tricky when you try to figure out when that period starts and ends. (Fla. Stat. § 95-11).

When Does the Florida Statute of Limitations for Foreclosure Start Running?

The period begins to run from the date of default. Generally, it runs continuously, but if you take action that prevents the mortgage holder from filing a foreclosure action, such as filing for bankruptcy, the period might be tolled (suspended) or extended until the mortgage holder can legally take action again.

What Is the Date of Default?

"Default" is defined in your mortgage loan documents. Usually, it is defined as failing to make your payments when they come due or to bring them current within a certain grace period. But if you have missed several payments, which is the default date? The answer is that they probably all are. Each time you miss a mortgage payment, you are likely defaulting on your obligation under the note and mortgage.

Unless you have cured any of the defaults by making the payment due for that period, the mortgage holder can generally bring a foreclosure action based on any of the default dates. The foreclosure suit must be filed within five years from the date the mortgage holder is using as the default date. Each time you miss a payment, a different period begins to run. The mortgage holder can generally act on any of them.

The Florida Supreme Court decided that a lender may file a successive foreclosure action without violating the statute of limitations, even after a previous acceleration of the loan and a prior involuntary dismissal of the foreclosure action, provided the subsequent default was post-dismissal and within five years of the newly-filed action. (See Bartram v. U.S. Bank, N.A., 211 So. 3d. 1009 (Fla. Nov. 3, 2016)). This decision applies to cases where the mortgage includes the right to reinstate, the previous case was involuntarily dismissed, and the borrower has a post-dismissal default.

So, your mortgage holder generally has five years from the date the final payment is due to bring a foreclosure action in Florida.

What Is the Statute of Limitations on a Foreclosure Deficiency Judgment in Florida?

When a mortgage holder obtains a judgment of foreclosure, your mortgaged property is sold by the court at a foreclosure sale. If the sale doesn't bring in enough money to pay the entire amount of judgment, the mortgage holder can ask the court to enter a deficiency judgment against you for the difference between the foreclosure judgment amount and the property's value.

Sometimes, the holder gets a deficiency judgment as part of a foreclosure lawsuit, but not always. Under Florida law, a mortgage holder can also obtain a deficiency judgment by filing a separate lawsuit against you.

One-Year Statute of Limitations for Deficiency Judgments in Florida

In Florida, the statute of limitations for deficiency judgments resulting from foreclosures on or after July 1, 2013, is one year. (Fla. Stat. Ann. § 95.11). The period doesn't begin to run until the day after the court clerk issues a certificate of title to the buyer in the foreclosure sale.

The reason for this start date is that your mortgage holder doesn't become entitled to a deficiency judgment in connection with a foreclosure until a judgment has been entered and your property has been sold for less than what was owed.

Getting Help

If you're facing a foreclosure in Florida and want to learn more about the process and whether you have any potential defenses, such as a statute of limitations defense, consider talking to a foreclosure defense lawyer.

To learn about different ways to avoid a foreclosure, like completing a loan modification, short sale, or deed in lieu of foreclosure, consider talking to a HUD-approved housing counselor.