Florida Supreme Court Refuses to Reconsider Landmark 2016 Ruling on Statute of Limitations for Mortgage Foreclosure

by Burr & Forman

Burr & Forman

On March 16, 2017, the Florida Supreme Court denied motions for rehearing and/or clarification filed by petitioners Lewis Brook Bartram, the Plantation at Ponte Vedra, and Gideon M.G. Gratsiani. All three petitioners requested the Florida Supreme Court reconsider or clarify its landmark November 3, 2016 opinion in Bartram v. U.S. Bank, N.A., SC14-1266, 2016 WL 6538647. The Florida Supreme Court’s opinion in Bartram holds that the involuntary dismissal of a prior foreclosure action, be it with or without prejudice, does not prevent the filing of a subsequent foreclosure action which purports to accelerate the mortgage debt based on subsequent defaults.  By virtue of the Court’s order decision not to rehear the matter, the majority opinion in Bartram is now final.

The Florida Supreme Court rejected several arguments from the petitioners. For the sake of brevity, this post will not discuss each and every argument rejected by the Court. However, a few highlights merit note as they continue to be advanced in lower court proceedings by foreclosure defense counsel anxious to avoid the application of the Bartram majority opinion’s holding, which is unfavorable to defaulting borrowers. The Florida Supreme Court’s refusal to entertain rehearing or clarify the majority opinion based on such arguments strongly suggests the arguments are disfavored by the Florida Supreme Court.

One particular argument of note by Gideon M.G. Gratsiani asserted that an involuntary dismissal of a foreclosure action does not, in fact, return the parties to their pre complaint statute quo.  Gratisiani argue that the dicta in Singleton should be confined to its facts, because, according to Gratsiani, “Singleton was not addressing the effect of all dismissals on the respective parties, but rather a specific type of dismissal that would return the parties back to the same contractual relationship when a borrower proves he or she is not in default.”  The Florida Supreme Court declined rehearing on this issue, which strongly suggests that the Florida Supreme Court is comfortable with its broad application of the dicta in Singleton which held that dismissal placed the parties back to “the same contractual relationship with the same continuing obligation.” Majority Op. at 25.

Another argument of note, this time advanced by Lewis Bartram, was the position that an involuntary dismissal “without prejudice” could not unwind an election to accelerate, but a dismissal “with prejudice” could.  The Florida Supreme Court appears comfortable that its holding in the Bartram majority opinion that the distinction between a dismissal with and without prejudice does not affect the application of the statute of limitations for mortgage foreclosure, and that any kind of involuntary dismissal will serve to unwind an election to accelerate announced in a foreclosure complaint.

It remains to be seen if the distinction between a dismissal with prejudice, as opposed to without prejudice, will affect the amount of payments the lender can recover in a refiled action by virtue of the doctrine of res judicata. Since the Bartram opinion did not consider a foreclosure judgment in favor of the lender, it did not pass on the issue of precisely how much the lender may recover in such an action, even though prior precedent clearly holds that the doctrine of res judicata does not bar the filing of an action electing to accelerate the debt based on subsequent post-dismissal defaults. See Singleton v. Greymar and Assoc., 882 So. 2d 1004 (Fla. 2004).

Finally, all three petitioners made much ado about the fact that the borrowers in the Court’s prior landmark opinion Singleton opinion had reinstated their mortgage prior to their subsequent default, and attempted to convince the Florida Supreme Court that the opinion in Singleton should be distinguished from the facts of the Bartram case based the Bartram’s failure to reinstate the mortgage. However, in light of the Florida Supreme Court’s decision to decline to reconsider its majority opinion after having been presented with this fact repeatedly by all three petitioner’s for rehearing, it is safe to say that the Florida Supreme Court was not convinced that such facts were a distinction with a difference for purposes of their holding in the majority opinion in Bartram.

In sum, the Florida Supreme Court’s decision to decline rehearing of the majority opinion in Bartram renders that opinion final and it can now be relied upon with confidence that its holding will not be unfavorably revised or changed any time soon. This will come as a great relief to mortgage lenders and loan servicers in the Florida market who can now rest assured that a continued state of default will ensure they retain the ability to file a foreclosure action, even if prior efforts to foreclose have failed. Of course, the industry should continue to keep an eye on the Florida Supreme Court case 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), which will hopefully answer additional questions about the application of the statute of limitations for mortgage foreclosure which the majority opinion in Bartram left unanswered, such as how to properly plead a refiled foreclosure based on a subsequent default.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Burr & Forman | Attorney Advertising

Written by:

Burr & Forman

Burr & Forman on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.