ALFN Amicus Briefs Update - Maki v. NCP Bayou 2, LLC
Florida's Sixth District Court of Appeals accepted the ALFN amicus brief in support of NCP Bayou 2, LLC, but the Court denied NCP's Motion for Rehearing. So, the statute of limitations appellate opinion described below remains the law in Florida.
In July, the ALFN filed an amicus curiae brief in the Florida case of Maki v. NCP Bayou 2 LLC (“NCP”). The case involves the statute of limitations in a mortgage foreclosure action following the entry of a money judgment in a prior action on the mortgage note. Florida law allows lenders to first obtain a money judgment on a note and later file a foreclosure on the mortgage. The appellate issue in Maki is when the five-year mortgage foreclosure statute of limitations begins to run in such a case. Florida's Sixth District Court of Appeals held that the foreclosure case was time-barred because the foreclosure statute of limitations began to run when the loan was accelerated—more than five years before the foreclosure was filed.
ALFN's amicus brief, co-authored by Michelle Garcia, Ileen Cantor and David Rodstein, was submitted in support of NCP's motion for rehearing and motion to certify a question of great public importance. ALFN argued that the applying the same statute of limitations to the money judgment and the separate foreclosure action penalizes lenders for exercising their legal right to pursue the two remedies sequentially. ALFN also argued that the core purpose of the statute of limitations—protecting unwary defendants from stale claims—was met when NCP timely filed its action for money damages within five years after acceleration. For both reasons, ALFN argued that the statute of limitations for foreclosure after a money judgment should be no earlier than five years after entry of the money judgment. Legal League joined the ALFN in requesting the Court of Appeals to accept the brief and joined in its arguments. The Court of Appeals has yet to rule on the request to file the amicus curiae brief. ALFN will publish an update when the Court of Appeals takes action.