Posts Tagged Lawyer

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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Litigating Insurance Disputes

Florida Trial Attorney Litigating and Resolving Insurance Disputes

When you and your insurance company have a good faith dispute over a Florida property damage or personal injury insurance claim, including the threshold issue of coverage as well as disputes over liability or damages, you will benefit by having an attorney dedicated to resolving the dispute so that your claim is paid, including litigating the matter in court if a reasonable settlement cannot be reached.

Coverage Disputes Over First-Party Claims

It is reasonable to expect an insurer to examine any claim to make sure it is covered before paying the claim. Typically an insurance adjuster will investigate the damage and review any accident report, if applicable. A review of the policy may also be appropriate to make sure the type of injury or damage falls within the terms of the policy as a covered claim. However, when these actions are taken solely to find an excuse to avoid paying a valid claim, the insurer may be sued for bad faith and forced to pay monetary damages in addition to the benefits under the policy.

A good faith dispute over coverage may exist based on the facts behind the claim or the terms of the policy, including whether the insured fulfilled its reasonable obligations under the policy, such as keeping up the premiums and providing notice of the claim or a potential claim in a timely manner. Insurance contracts are often highly technical, lengthy, and complicated documents that are difficult to understand or interpret; rarely is an insurance policy written in plain English. Where a good faith dispute exists over coverage, you want an attorney on your team to work with the insurance company to come to an understanding or litigate the matter in court if necessary.

Coverage Disputes Over Third-Party Claims

When a party who is sued has liability insurance, that party’s insurance carrier generally has a duty to settle the claim or defend the party in court. When a dispute arises over whether such a claim is covered under the policy or not, that question may need to be litigated in court. If persuaded at trial, the judge can issue a declaratory judgment ordering the insurance company to defend its insured. In many instances, it is enough just to prove that a potential for coverage exists in order to obtain a declaratory judgment.

Liability/Damages Disputes

Even when coverage is not disputed, there may still be a disagreement over liability or damages. For instance, if your liability insurer agrees to defend you under a reservation of rights, and a judgment is entered against you, the carrier may still dispute their obligation toward you, and further litigation may be necessary to force the insurer to pay the judgment in accordance with the terms of the policy.

In first party claims between insurer and insured, there may be a dispute over the facts in the case. For example, the parties may argue over whether a flooded room is water damage (covered by home insurance) or flood damage (covered only by flood insurance), or they may disagree over the cause of a sinkhole or whether the insured was in some way negligent. Even where the carrier’s liability to pay the claim is not in question, there may be a strong disagreement over the amount of damage and the proper amount to be paid under the claim. Insurance adjusters often assess the damage at a minimal level, and it may take legal intervention from an attorney experienced in the particular type of claim to argue for a more appropriate measure of the damage.

Experienced Florida Insurance Dispute Attorney

If you find yourself at odds with your insurance company over a claim, including questions of liability or damages or even whether your claim is covered at all, call Florida Defense Law, P.A. at 941-706-4472. You can also contact the Firm online to arrange for a free consultation with a knowledgeable attorney experienced in the resolution of insurance disputes.

For answer to common question please see the Insurance Dispute FAQ Page

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L.A. Times on the Florida Attorney General’s Report

Attorney General Pam Bondi

Attorney General Pam Bondi

Previously this week I posted a document titled “UNFAIR, DECEPTIVE AND UNCONSCIONABLE ACTS IN FORECLOSURE CASES.”  The L.A. Times yesterday published the following:

Titled  “Unfair, Deceptive and Unconscionable Acts in Foreclosure Cases,” the presentation includes alleged examples of fraud and does a good job explaining the complicated process of securitization and some of the missteps major financial institutions made when they wrote, packaged and sold mortgages during the boom years. It explains how those missteps have come back to haunt banks during the housing market’s decline.Read the full article here.

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Based in the Sarasota, Florida area. Serving clients globally.

Consultations are available in person, over the phone, or online via Skype.

If you would like to print directions, double-click on the peg on the map and follow the prompts.

Mailing address and Office location:

 

852 62nd Street Circle East, Suite 102
Bradenton, Florida 34208

 
 
 
 

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