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Foreclosure Defense Florida

Foreclosure in Florida…There is No “Winning a Foreclosure” For Consumer (The Bank Can Just Refile Over and Over)

In some ways, there is no statute of limitations for a foreclosure and even if a consumer “wins” a foreclosure trial, the bank can just refile.

The reality of Florida foreclosure law is actually much different and more complicated that the versions of Quiet Title and Securitization audits sold by the con artists operating on the internet….

 

For the reasons set out below we approve the decision in Singleton and hold that a dismissal with prejudice in a mortgage foreclosure action does not necessarily bar a subsequent foreclosure action on the same mortgage.

The Fourth District has consistently taken the position that res judicata does not prevent mortgagees from foreclosing on a mortgage in successive foreclosure cases when the alleged dates of default are different.

We agree with the position of the Fourth District that when a second and separate action for foreclosure is sought for a default that involves a separate period of default from the one alleged in the first action, the case is not necessarily barred by res judicata.

While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue.

This seeming variance from the traditional law of res judicata rests upon a recognition of the unique nature of the mortgage obligation and the continuing obligations of the parties in that relationship.

(we must do whatever is required to assist banks and punish consumers)

We conclude that the doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit. In this case the subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action.

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SUMMARY OF ARGUMENT
Whether the District Court of Appeal, Fourth District, erred, as a matter of fact
and law, in affirming the lower court’s summary final judgment of foreclosure for
the Respondent where the Respondent’s prior foreclosure action was involuntarily
dismissed for its failure to comply with an order of court; where the Respondent
failed to seek rehearing, appeal or otherwise contest the involuntary dismissal; and
where the Respondent, more than one (1) year later, filed the same foreclosure
action against the Petitioners, who contend that the second foreclosure action was
res judicata because the first foreclosure action operated as an adjudication on the
merits under Rule 1.420(b) of the Florida Rules of Civil Procedure?

One Comment

  • John Andersaon says:
    August 6, 2013 at 11:10 am

    Matt,
    Thank you for your work. Your reporting of the truth, is unique in your profession.
    And with all this in mind, the only conclusion I can come up with is if one wants justice, in Florida, they will have to obtain it in Federal Court.
    After defeating Summary Judgment, and having the matter set for trial, I thought I had a chance to win. And I did “sorta”. And I thought that Foreclosure Court was a court of equity, not a court of law. That the baby could not be split in half. That I would win the house, or lose it, but the matter would be settled. That once the foreclosure suit was past Summary Judgment and set for trial, that there would be no second bite of the apple allowed.The matter was decided in my favor, on standing, but with out prejudice.
    Now I am learning that it don’t make that much difference.
    The suit damages sought $179,000.00 and the new plaintiffs had offered a selttlement offer of $72,000.00 back in 2011, but the fact that the mortgage taken out in 2003 had not been removed by the mortgage taken out in 2006. So it appears to lenders that I have two mortgages.
    So the fight goes on.
    I am hopeful that lawyers like you will get these new rules overturned. Again Thanks.

    Reply

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