Posts Tagged florida quiet title attorney

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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Quiet Title

Action to Quiet Title.  A proceeding to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it.  Black’s Law Dictionary, (2004).

There are many reasons why one may need to bring an action to quiet title on real property.

If you have purchased property at a tax lien auction, filing a quiet title action is necessary in order to be able to convey marketable title.  Through this action, any clouds on the title may be removed, and any prior claims may be extinguished, leaving the owner with clear and marketable title.

You may have a different situation, such as a conflict in boundary descriptions in diverse recorded conveyances due to a clerical error or there may be improper liens on the property.  In some cases, simply refinancing your home may create clouds on title in the event that the interests of the parties were not properly recorded or in the event that proper satisfactions of prior liens have not been properly recorded.

If you are considering whether or not to purchase a property that has been foreclosed on, or are considering buying a property at a foreclosure auction, there are issues related to title that you might want to discuss with an attorney.

If you have questions about Quiet Title actions, please call my office and I am happy to discuss your case with you.

In 2014, Attorney Alexander Scott Dennison filed a lawsuit in Sarasota County Florida to quiet title to property and argued that both the Statute of Limitations and the Statute of Repose have run. For more information about this case, which as of January 26, 2015 is still pending before the 2nd DCA, please visit this link to Howell vs Suntrust, et al.

Other Practice Areas

  • Civil Appeals
  • Real Estate
    • Quiet title actions
    • Homeowner Association and Condo Association Disputes
    • Foreclosure Defense
    • Foreclosure Appeals
    • Landlord/Tenant
  • Sports and Entertainment Law
    • Arbitration Disputes
    • Contact Drafting
    • Mediation
    • Appeals of Arbitration Rulings
  • International Law
    • Private international law including international business transactions.
  • Immigration
  • Contracts and contract related disputes
  • DUI Defense
  • Criminal defense – misdemeanors

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A Fresh Approach to Legal Services

Dedicated to defending your rights.

Providing solutions you value through custom tailored legal services.

Bespoke Legal Services = Custom tailored solutions that help you meet your goals.

Step 1: Identify your goal.
Step 2: Build your team.
Step 3: Create a plan of action.
Step 4: Work the plan.
Step 5: Repeat as needed.

Your Goals

The process starts with your goals. Many lawyers you meet will be eager to tell you what they think you need. This Firm thinks that the best person to decide what you need, is you. However, in order to make important life decisions, it is vital to have the knowledge necessary to make a truly informed decision. This is where having competent counsel is vital.

Building Your Team

It has been said that “…it takes a village.” Well, I will say that it certainly takes a team. Who do you want on your legal team?

Few of us, if left to ourselves, would get very far. There are teachers, babysitters, parents, siblings, coaches, pastors, friends, neighbors, etc., that most of us rely upon to help us grow and achieve in our everyday lives. Those who strive to achieve at a high level, understand that picking the right team members has a huge impact on their chances for success. When making those choices, it is important that the people you select are as dedicated to you reaching your goals as you are. As an attorney and adviser, your goals become my goals.

Many lawyers today prefer to specialize in a very specific area, and are most comfortable offering a very limited, specialized service. In some circumstances, the off the shelf approach to legal services might work for you. But what if that service is not ideal for your situation? Not everyone wants to have to deal with one lawyer for their will, one lawyer for their immigration issue, and yet another lawyer if they have an accident. In fact, many people would rather not deal with an attorney at all.

It is unlikely that you will receive objective advice if that attorney only sells that service. If you have financial concerns, and you ask an attorney whose practice focuses on bankruptcy, you would expect to be offered a bankruptcy solution when there might be other solutions available that will better serve your needs.

The key point to take away is simply this…do you want someone to sell you a generic canned service or do you want someone who will consider all available options for your unique situation that will help you set up your best action plan.

Creating a plan of action

This is where together with your team you begin to create your own road map. This is where you outline the action steps required for you to meet your goals. It is a lot like preparing for a big athletic event. In order to successfully complete a marathon it is necessary to plan, prepare, and execute. The planning needs to be detailed but not lose sight of the goal. Milestones must be identified and interim goals achieved. Once you have the map laid out, you move on to step four.

Depending upon the specifics of your circumstances you may need more than one professional on your team. Professional Athletes for example often need a lawyer, accountant, various investment advisers, doctors, trainers, etc. There is no magic formula for every situation, but having a good team is important. After every final in a major tennis tournament the player will thank his or her team, it is that important.

Using any number of tools in the attorney’s tool kit, a plan of action is developed to help you meet your goal. Whether you have been injured in an accident and need assistance dealing with an insurance company, or you are seeking to open a new company in the United States, creating your plan of action begins with a call to Florida Defense Law, P.A.

Working the plan

Now that you have prepared yourself, it is time to put in the hard yards, and work the plan. Working the plan may include allowing your team to get to work on your behalf, or it may require some homework on your part. The important part of working the plan is that when you or your team member see that a part of the plan is not producing the desired result, you circle back, create a revised plan, and get back to working the newly revised plan.

Repeat as needed

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Located along the Gulf Coast of Florida, near the training center for many world-class athletes, including the world-famous tennis academy IMG, the Firm provides value through helping clients create effective solutions to help meet their specific goals. The Firm also assists athletes in all phases of the athletic career. Whether you are a pre-professional looking for legal advice, or a seasoned professional looking for someone who you can relate to and who has your interests in mind, the Firm is here to assist you with all of your legal needs.

Located in downtown Sarasota, Florida. If you are unable to travel to meet in person, please contact my office to arrange for a telephone consultation or meeting via Skype.Office Location

I assist with a wide variety of legal issues including:

    • Insurance Disputes
    • Civil Appeals
    • Estate Planning, including Wills, Trusts, Probate, etc.
    • Foreclosure Defense
    • Real Estate, including Quiet Title actions, Landlord/Tenant, Homeowner Association and Condo Association
    • Consumer Law, including credit card debt collections
    • Consumer Bankruptcy
    • General Civil Litigation
    • Sports and Entertainment Law
    • Immigration
    • International Law, Private international law including international business transactions.
    • Services for small businesses
    • Contracts and contract related disputes

 

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