Posts Tagged foreclosure

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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Zombie Foreclosure Debt, it’s scary.

What is worse than losing your home to foreclosure? This article describes a scenario that I have been advising clients on for years. And more and more in foreclosure courtrooms we are seeing banks pursue money judgments for deficiency balances.

Additionally, many people who had their previous foreclosure case dismissed are facing new foerclosure cases. If you would like to discuss your foreclosure or debt collection issue with an experienced attorney, please contact my office and schedule a free consultation.

http://money.cnn.com/2014/11/17/real_estate/zombie-foreclosure-debt/index.html

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PINO Update

Well, it has been a while but there is movement on the previously discussed PINO case. See Previous Post Here

Oral argument will be held this week and you can watch them streaming online here: Oral Argument Stream

I do not have the time to detail and analysis of this issue here but this case is important to all of us who defend Floridians in foreclosure and for in-depth discussion of some of the issue raised please check out what my colleague Matt Weidner has written about the case on his Blog. You will get a good overview of some of the issues and why this case is important not just for foreclosures but for the rule of law.

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Free Seminar March 16, 2012

FLORIDA DEFENSE LAW, P.A. presents
The Clouded Titles Tour
Sarasota, Florida
Friday, March 16, 2012
6-9 p.m.

Sahib Shrine Auditorium
600 N. Beneva Road, Sarasota, Florida 34232
Restaurant and bar will be open from 5:00 p.m. to 7:30 p.m. for dinner.

Click below to view and print flyer.

Printable flyer for March 16, 2012 Seminar.

 

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