Chapter 20-4 Statute of Limitations

20-4 Statute of Limitations

In 2013, Florida's House Bill 87 amended Florida Statute § 95.11, which governs the statute of limitations to pursue a deficiency judgment. The alteration decreased the statute of limitations for claims of a deficiency related to notes secured by a mortgage against a one-family to four-family residential property unit from five years to one year. The 2013 amendment applies to actions or proceedings³³ commenced after July 1, 2013. For those actions or proceedings that began prior to July 1, 2013, the statute of limitations remains no later than five years after the action accrued, but in any event, no later than July 1, 2014. As such, § 95.11(5) (h) requires that, moving forward, all deficiency judgment actions or proceedings related to notes secured by residential properties are governed by the one-year statute of limitations. This limitation applies both to separate actions for a deficiency judgment and motions for a deficiency judgment brought within an existing mortgage foreclosure action.³⁴

The limitations period commences on the day after "the certificate" is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.³⁵ The statute's reference to "the certificate" is less than precise.³⁶ However, the reference likely refers to the certificate of title, which would parallel the legal effect of a deed in lieu of foreclosure.³⁷

The one-year statute of limitations for a deficiency judgment does not apply to a judgment sought following a short sale.³⁸ The statute of limitations for seeking a deficiency judgment after a short sale is five years.³⁹

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Notes:

^[33] Accardi v. Regions Bank, 309 So. 3d 672 (Fla. 4d DCA 2020) (citing Section 95.011, Florida Statutes (2018)).

^[34] Accardi v. Regions Bank, 309 So. 3d 672 (Fla. 4d DCA 2020).

^[35] See Fla. Stat. § 95.11(5)(h) (2018). Dyck-O'Neal, Inc. v. Norton, 267 So. 3d 478, 481 (Fla. 2d DCA 2019).

^[36] Florida Statute § 95.11(5(h) does not specify whether it is here referencing "the certificate" of sale, or the certificate of title. In an abundance of caution, wise attorneys will use the earlier date as the start date for the deficiency statute of limitations.

^[37] Accardi v. Regions Bank, 309 So. 3d 672 (Fla. 4d DCA 2020).

^[38] Bush v. Whitney Bank, 219 So. 3d 257 (Fla. 5th DCA 2017) (one-year statute of limitations in Florida Statute § 95.11(5)(h) of the Florida Statutes (2015) did not apply to bank's action [to collect amounts outstanding after...