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 not been able to make your mortgage payments and your lender or holder has not filed a foreclosure action as quickly as you expected, you should find out how much time it has to bring a foreclosure lawsuit.
The laws that set deadlines for lawsuits to be filed are called statutes of limitations. Different deadlines are set for different types of lawsuits. And statutes of limitations vary by state.
If a creditor files a lawsuit against you after the time period has run, you can defend the suit by asserting the statute of limitations. The expiration of the statute of limitations is an affirmative defense to a lawsuit. This means that even if you admit that you owe the money that the creditor is suing to collect, if the statute has expired, you can prevent a judgment from being entered against you by responding and claiming that the suit is barred by the statute of limitations.
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.)
When the mortgage holder obtains a judgment of foreclosure, your mortgaged property is sold by the court at a foreclosure sale. If the sale does not 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 value of the property. Sometimes this is done as part of the foreclosure lawsuit, but not always. Under Florida law, a mortgage holder can also obtain a deficiency judgment by filing a separate lawsuit against you.
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 time period starts and ends. The time 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 time period may be tolled (suspended) or extended until the mortgage holder can legally take action again.
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 time period begins to run. The mortgage holder can generally act on any of them. (See Bartram v. U.S. Bank, N.A., 211 So. 3d. 1009 (Fla. Nov. 3, 2016). In this case, 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. This decision applies to cases in which 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.
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 time period does not begin to run until the day after the court clerk issues a certificate of title to the buyer in the foreclosure sale. This is because your mortgage holder does not 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.
If you’re facing a foreclosure in Florida and want to learn more about the process and whether you have any potential defenses to the foreclosure, consider talking to a lawyer. If you want to learn about different ways to avoid a foreclosure, like by completing a loan modification, short sale, or deed in lieu of foreclosure, consider talking to a HUD-approved housing counselor.