Foreclosing Bartram.

• Author: McBride, Bert

With the Cubs winning the 2016 World Series, there is a lot of talk in Chicago about the specters of the billy goat and the infamous Bartman finally being vanquished. (1) With one final victory, on November 2, 2016, Chicago Cubs fans finally let out a sigh of relief and put their 108-year nightmare to rest. (2) Cubs fans weren't alone in experiencing this relief though. That very week, lenders in Florida had the opportunity to celebrate a similar victory over their chief rival, those who default on their mortgages.

Bartman, meet Bartram, as in Mr. Lewis Bartram, the Florida man who instead of famously disrupting a routine foul ball, committed a similarly egregious act by failing to make his mortgage payments and attempting to garner a windfall by taking advantage of a neglected foreclosure action. Luckily, on November 3, 2016, a day after the Cubs excised Bartman by winning the 2016 World Series, the Florida Supreme Court handed down its decision in Bartram v. United States Bank Nat'l Ass'n, 2016 Fla. LEXIS 2424 (Fla. Nov. 3, 2016), which had a similar effect on Mr. Bartram.

In February 2005, Mr. Bartram executed a standard form installment mortgage that provided for both the optional acceleration of the sums secured by the mortgage as well as the borrower's right to reinstate the mortgage by curing any default. (3) Installment payments under the mortgage were to continue until March 2035. (4) In January 2006, less than a year after receiving the loan, Mr. Bartram stopped making payments on his mortgage. (5) Shortly thereafter, in May 2006, the lender filed a foreclosure suit on Mr. Bartram's residential property, which served as security for the mortgage. (6) The lender's foreclosure suit exercised the mortgage's acceleration clause and declared the full amount payable under the note and mortgage to be due. (7) For an unspecified reason, this foreclosure action languished. (8) Nearly five years later, on May 5, 2011, the foreclosure suit against Mr. Bartram was involuntarily dismissed due to the lender's failure to appear at a case management conference. (9)

A year after the original dismissal, as part of a cross-claim in another foreclosure proceeding, Mr. Bartram sought a declaratory judgment to cancel the mortgage and quiet title to the property. (10) Mr. Bartram asserted that the applicable five-year statute of limitations, set forth in F.S. [section] 95.11(2) (c), barred the lender from bringing another foreclosure action. (11) The trial court agreed with Mr. Bartram, who had not made a mortgage payment since 2006, and granted summary judgment in his favor against the lender. (12) The trial court cancelled the note and mortgage and released the lender's lien on the property. (13)

The lender appealed the trial court's decision to the Fifth District Court of Appeal, arguing that even though it had accelerated the amounts due on the mortgage at the outset of its original foreclosure, the dismissal of that foreclosure had served to de-accelerate the mortgage, thus, reinstating its installment nature. (14) In response, Mr. Bartram argued that the trial court's decision should stand because the lender's acceleration of all payments due in the first foreclosure action...