Posts Tagged florida quiet title attorney
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:
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:
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.
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.
Posted by Alexander Scott Dennison in on August 15, 2011
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.
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Posted by admin in on November 22, 2010
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