Alexander Scott Dennison

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Sarasota Herald Tribune Runs Article on Statute of Limitations – Foreclosure to home free

See my post below for more information regarding the Statute of Limitations as discussed in the recent New York Times article republished in the Sarasota Herald Tribune.

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Foreclosure Statute of Limitations and Statute of Repose in Florida

I recently argued a case of first impression in the Second District Court of Appeals. The oral argument was held on January 21, 2015 in the Tampa Law Center at Stetson University College of Law.

William W. Howell vs. Suntrust Bank, et al. CASE NO.: 2D14-2610

The following documents relate to the case, and are shared here for your reference. Please note that the briefs filed in the case were all filed prior to the Third District Court of Appeals’ Opinion in Beauvais. As such, you will see that the Beauvais Court adopted in large part the reasoning contained in the Initial Brief. There is also an Appendix. The Bank’s Answer Brief includes their argument in response. Here a copy of my Reply Brief , which was filed in response to their Answer Brief. And finally, a Notice of Supplemental Authority.

Following the filing of the publication of the Beauvais opinion I was able to see clearly where the Statute of Repose was being misunderstood and I am currently working on an article outlining the argument I made in Oral Arguments in an effort to explain why the analysis of the Third DCA is flawed.

The relevant language from the Statute is:

95.281 Limitations; instruments encumbering real property.

(1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage, except those specified in subsection (5), shall terminate after the expiration of the following periods of time:

(a) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturityBold emphasis added by me.

With these terms highlighted,  it is clear that the drafters used two different terms in the statute. The first, final maturity, is a fixed date. You can find it on a typical Mortgage recorded in every county in Florida. Here is an example:

 Example of Final Maturity Date from a Mortgage

Final Maturity = April 1, 2037

As you can see from this example, the final maturity is described as the date by which the entire indebtedness must be paid in full.

The second term, date of maturity, is a variable but only when you are talking about an installment contract with an acceleration clause. Absent an acceleration clause, the Final Maturity Date of a Mortgage is the Maturity Date. However, this is not necessarily the case when there is an optional acceleration clause.

Since the documents used in the majority of home loans, I refer to them as Fannie and Freddie Uniform Instruments, contain something called an acceleration clause, the date of maturity can only be determined by first determining whether the option to accelerate has been exercised by virtue of the lender providing written notice to the borrower. This Notice can be given in the form of a letter, or it can also occur in the initial pleading, the Complaint. By accelerating, a party thereby advances the maturity of the entire remaining indebtedness and the date of maturity becomes the date of acceleration. The result is that all of the remaining payments become due as one final payment, which is generally due 30 days following the date of the Notice.

Simply put, the Third District in the Beauvais opinion treated the final maturity date and the date of maturity as the same concept and therefore the same date. This is an understandable error given the complex nature of the law, but it is one that I expect will be corrected by this case currently before the Second District Court of Appeals.

So what?
Well, if the Statute of Repose has run, then no cause of action may be brought, ever, to collect the debt or to foreclose, and if the Statute of Repose has also run, the lien may be terminated by operation of law.

If you read the above and have questions about whether your lawsuit was filed timely or perhaps may be barred by the Statute of Limitations and the lien terminated by the Statute of Repose, contact my office.

Please note that the current law in Florida is still in limbo as the Third District has certified that their opinion is in conflict with the  Fourth DCA Opinion in Evergrene Partners, Inc. v. Citibank, N.A., 143 3d 954, 956 (Fla. 4th DCA 2014).

This is the video from the argument.

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Pro Tennis Law – by Attorney Alexander Scott Dennison

I am happy to announce a new sports law blog that I will be writing for periodically called Pro Tennis Law

I started the website, in November 2014 out of a desire to contribute to the Tennis community. The tennis community has given me so much over the years that I wanted in a small way to give back. My first article covered the issue of travel grants and NCAA eligibility and was very well received.

I will be posting primarily original tennis related legal articles there and this page will be for areas of law that the Firm practices in.

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Morgan Lamri found guilty of corruption offenses.

“Morgan Lamri found guilty of corruption offenses

French tennis official banned for life for violations of the Uniform Tennis Anti-Corruption Program

French tennis official Morgan Lamri has been banned from the sport for life after being found guilty of multiple offenses under the Uniform Tennis Anti-Corruption Program (Program).

Mr Lamri, 22, was found guilty of charges laid under the 2012 and 2013 editions of the Program, in a case based on the findings of a Tennis Integrity Unit investigation.

The charges for which he has been found guilty and sanctioned are:

16 separate breaches of Section D.1.a of the 2012 and 2013 Programs:
“No Covered Person shall, directly or indirectly, wager or attempt to wager on the outcome or any other aspect of any Event or any other tennis competition”
One breach of Section D.1.d of the 2013 Program:
“No Covered Person shall, directly or indirectly, contrive or attempt to contrive the outcome or any other aspect of any Event”
One breach of Section D.1.e of the 2013 Program:
“No Covered Person shall, directly or indirectly, solicit or facilitate any Player to not use his or her best efforts in any Event”
Breaches of Section D.2.c of the 2013 Program:
“For the avoidance of doubt, (i) a failure of the Reporting Obligation by any Covered Person; and/or (ii) a failure of the duty to co-operate under Section F.2 shall constitute a Corruption Offense for all purposes of the Program.”
Independent Anti-Corruption Hearing Officer Jane Mulcahy QC considered the case and imposed the sanction.

The lifetime ban applies with immediate effect and means that Mr Lamri is not eligible to officiate, participate in or attend any tournament or competition organised or sanctioned by the governing bodies of professional tennis from the date of this statement.

Consistent with the confidentiality of the Anti-Corruption Hearing process, no further details will be made public.

The Tennis Integrity Unit is an initiative of the Grand Slam Board, the International Tennis Federation, the ATP World Tour and the WTA, who are jointly committed to a zero tolerance approach to corruption in tennis.

* The Uniform Tennis Anti-Corruption Program is the code of conduct under which the charges against Mr Lamri were laid. With effect from 1 January 2014 the regulations were updated and re-named as the Tennis Anti-Corruption Program. A copy can be downloaded above.”


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